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Powers  of  the  American  People, 

Congress,  President,  and 

The  Courts 


MASUJI    MIYAKAWA,     D.C.L.,    LL.D. 


Powers 

of  the 

American  People,  Congress,  President 

and  Courts,  According 

to  Evolution 

of 

Constitutional  Construction 


By 
Masuji  Miyakawa,  D.C.L.,  LL.D. 

Lecturer  of  the  Law  School  of  the  University  of  Indiana,  and  the  first  Japanese 
Attorney  ever  admitted  to  the  American  bar 


Washington,  D.  C. 

The  Wilkens-Sheiry  Co. 

1906 


Copyright  1906 

by 

Masuji  Miyakawa 


Published  September,  1906 


PREFACE 

No  argument  would  seem  to  be  necessary  to  prove 
the  importance  of  instructing  the  students  of  government 
in  the  theory  and  practical  character  of  the  powers  of  the 
People,  Congress,  the  President,  and  the  Courts  of  the 
United  States, 

The  impression  has  largely  obtained  among  students 
of  government  and  others  in  the  Old  World  that  because  of 
its  newness  the  American  system  could  present  little  of 
interest  or  value  to  the  investigator;  it  has  been  believed 
also  by  many  that  the  American  system  was  inimical  to 
Old  World  systems.  The  fact  that  hitherto  no  convenient 
manual  of  instruction  was  to  be  had  may  have  been  largely 
responsible  for  such  misconceptions,  and  if  this  work  shall 
be  the  means  of  removing  such  impressions  it  will  have 
accomplished  its  purpose. 

In  preparing  it,  it  has  been  the  endeavor  of  the  author 

to  set  forth  the  clauses  of  the  Constitution  upon  which  each 

of  the  four  powers  rests,  as  well  as  the  construction  that 

has  been  given  them  by  the  authoritative  exposition  of  the 

Courts,  or  well  established  practice  of  the  government  of 

the   United    States. 

By  the  Author, 
Washington,  D.  C,  U.  S,  A. 


To 

of 

as  a  sincere  appreciation  of  many  kindnesses 
this  vohune  is  dedicated 


CONTENTS 


Section  i. 


Section  2. 


Section  3. 


Section  4. 
Section  5. 


Section  6. 
Section  7. 


ARTICLE  I. 

THE  PEOPLE. 

PAOM 

The    People 3 

The  People  of  the  United  States 3 

The   English    People 4 

The   Japanese   People 4 

The     Sovereignty 4 

The  Sovereignty  of  the  United  States.  .  5 

The  English  Sovereignty 5 

The  Japanese  Sovereignty 5 

The  Government 6 

The  Government  of  the  People 7 

The  Assent  of  the  States 7 

The  Union  of  the  States 9 

The  Distribution  of  Public  Functions. . .  10 

The  American  Legislature 13 

The  English  Legislature 14 

The  Legislatures  and  the  People 14 

The  Powers 16 

The  Powers,  per  se 17 

The  Powers,  we  see 17 


X  CONTENTS. 

ARTICLE  II. 

CONGRESS. 

PAOE 

Section  8.     The  Representatives 21 

The  Electors 21 

The  Qualifications  of  Electors 22 

The  Qualifications  of  the  Representatives  23 

Section  9.    The  Senators 24 

The  Electors 25 

The  Qualification  of  Electors 25 

The  Qualification  of  the  Senators 26 

Section  10.  Taxation  28 

The  Power  to  Tax 31 

The  Word  "Tax"  defined 32 

For  Public  Purpose 33 

Section  it.  Power  to  Borrow  Money 36 

Section  12.  Regulation  of  Commerce 41 

The  Commerce  Clause  Defined 41 

Instrument  of  Commerce 42 

The  Embargo  Act 42 

Validity  of  National  Legislation 45 

Validity  of  State  Legislation 47 

Section  13.  The  Police  Power 48 

Federal  Tax  on  ^^xports  and  Imports.  .  51 

State  Tax  on  Exports  and  Imports ...  51 

Section  14.  Naturalization 54 

Section  15.  Citizenship    55 

Section  16.  The  Statutes  of  Naturalization 57 


CONTENTS.  XI 

FAOB 

Section  i6.  Chinese    Naturalization 57 

Collective    Naturalization 62 

Section  17.  Bankruptcy 65 

Federal  Bankruptcy  Law 66 

State  Insolvency  Law 67 

Section  18.  To  Coin  Money 68 

Section  19.  Weight  and  Measure 70 

Section  20.  Counterfeiting   y2 

Section  21.  Post  Office  and  Post  Roads 75 

Section  22.  Use  of  Mails 76 

Section  23.  Copyrights   and   Patents 80 

Section  24.  Patents  and  Police  Power 82 

Section  25.  Piracies  87 

Section  26.  High   Seas 90 

Section  27.  Highways   93 

Section  28.  War 93 

Section  29,  Treason 97 

ARTICLE  III. 

THE  PRESIDENT. 

Section  30.  The  Qualifications   107 

Tenure  of  the  Office 107 

Investiture   108 

Removal  of  the  President no 

Section  31.  Commander  in  Chief  of  the  Army  and 

Navy    no 

Section  32.  The  Responsibility  m 

Section  33.  Reprieves   and   Pardons 112 


Xll  CONTENTS. 

FAQE 

Section  34.  Treaty    Makin<^ 118 

Section  35.  Conflict  of  Treaty  and  Act  of  Congress  123 

Section  36.  Treaty  and  Statute  of  States 124 

Section  37.  Message  to  Congress 128 

Section  38.  Appointment  and  Removal 129 

Restriction    130 

Independence  133 

Cooperation  of  the  Senate  and  the  Presi- 
dent   134 

ARTICLE  IV. 

THE  COURTS. 

Section  39.  Potentially    Co-extensive 141 

The  Good  Behavior 142 

Independence     143 

Section  40.  The  Judicial  Power  of  the  United  States  144 

Jurisdiction 144 

Original  Jurisdiction 147 

Appellate    Form 148 

Exclusive  Jurisdiction. 149 

Section  41.  Concurrent  Jurisdiction  with  the  States  149 
Section  42.  Cases  Affecting  Ambassadors,  Ministers 

and  Consuls 152 

Section  43.  Cases  of  Admiralty  and  Maritime  Juris- 
diction    158 

Section  44.  Public  River,  Ports,  Havens,  etc 160 

Section  45.  Removal  from  State  to  Federal  Courts. .  161 

Section  46.  State   Courts  Jurisdiction 163 


CONTENTS.  xm 

Section  47.  Controversies  to  which  the  United  States 

is  a  Party 165 

Section  48.  Controversies    between     two     or    more 

States 166 

Questions  of  Boundary 167 

Jurisdiction    Refused 170 

Section  49.  Controversies  between  a  State  and  Citi- 
zens of  another  State 171 

Section  50,  The  Court  of  no  Country  can  Execute 

the  Penal  Laws  of  Another.  ...  171 

Section  51.  The  word  "Controversies" 175 

Section  52.  Diverse    Citizenship 176 

Section  53.  Suit  against  States 178 

Exclusive  Jurisdiction 179 

The  nth  Amendment  to  the  Constitution  180 

Section  54   A  Citizen  can  Sue  for  Himself 181 

Section  55.  Religious   Liberty 182 

Section  56.  Unreasomble  Searches  and  Seizures. .  186 

Section  57    Involuntdiy    Servitude 189 

Section  58.  Due  process  of  Law 193 

Section  59.  Equal  protection  of  Law 196 

Section  60.  Rights  of  Citizens,  Strangers  and  Aliens  198 

Section  61 .  Judiciary  is  the  Final  Authority 206 

Judicial  Construction  of  the  Constitution  206 

Legislature  Construction 207 

Executive  Construction 207 


XIV  CONTENTS. 

APPENDIX  I. 

BEFORE  THE  PROMULGATION  OP  THE  CONSTITUTION. 


PAGE 


The  Grecian  Republics 211 

The   Roman   Constitution 213 

The  Teutonic  Family  of  Nations 215 

Liberty,  Birthright  of  Englishman 217 

Reformation 218 

Colonization  in  the  New  World 219 

The  First  Continental  Congress 230 

Revolutionary   War 231 

The  Declaration  of  Independence 232 

The  Constitutional   Convention 234 

APPENDIX  II. 

Constitution  of  the  United  States 239 

In  Addition  to,  and  Amendment  of,  the  Constitution  of 

the  United  States 250 

Index 257 


LIST  OF  ILLUSTRATIONS 


The  Author Frontispiece 

I'AdK 

The  U.  S.  Capitol 1 1 

Hall  of  the  House  of  Representatives 29 

The  U.  S.  Senate  Chamber 39 

The  Members  of  the  House  of  Representatives 49 

The  U.  S.  Senators 59 

The  Members  of  the  House  of  Representatives yy 

The  U.  S.  Senators 95 

The  White  House 106 

The  U.  S.  Presidents  (from  Washington  to  Taylor)  .  .  115 

The  U.  S.  Presidents  (from  Fillmore  to  Roosevelt) .  .  125 

The  Members  of  the  Roosevelt  Cabinet 135 

The  Chief  Justice  Marshall 145 

The  U.  S.  Supreme  Court  Chamber 155 

The  Chief  and  Associate  Justices  of  the  U.  S.  Supreme 

Court 173 

The  U.  >S.  and  State  Judges 191 


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THE  PEOPLE 


THE  PEOPLE 


ARTICLE  I. 


"We,  the  people  of  the  United  States,  in  order  to  have  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquility,  provide 
for  the  common  defence,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  constitution  for  the  United  States  of  America." — 
Preamble  of  the  Constitution  of  the  United  States. 

Section  i.  The  prominent  term  "the  people"  from 
the  American  standpoint  is  entirely  different  from  the 
nature  of  the  same  title  as  used  in  Asiatic  and  European 
countries.  It  has  a  distinct  and  different  meaning,  which 
Doctors  of  Law  in  those  countries,  no  matter  how  well 
versed  in  the  principles  of  laws,  can  not  apprehend  until 
they  were  in  the  spirit  of  the  American  understanding  of 
it.  The  word  the  "people"  of  the  United  States  in  its 
proper  legal  acceptation,  means  the  whole  mass  of  male 
and  female  citizens  constituting  the  political  unit.  It  is 
identified  as  the  political  entity  and  artificial  person,  and 
not  a  majority  of  the  individuals  composing  society  and 
those  persons  who  have  the  right  to  vote. 

If  the  Professor  of  Laws  will  turn  to  the  Commen- 
taries of  Blackstone,  he  will  find  at  once  that  under  the 

3 


4  THE   PEOPLE. 

head  "People,"  the  word  "People"  is  used  in  the  same 
sense  as  subjects  and  not  in  the  sense  of  the  body  politic 
or  a  part  of  it.  Nowhere  will  he  find  "the  people"  as  the 
American  will  find  in  the  laws  of  his  country.  In  fact, 
in  England  there  is  no  people  from  a  strict  legal  con- 
templation. Bryce  emphasized  that  when  he  said  that 
"the  British  Parliament  had  always  been,  and  remains 
now,  a  sovereign  and  constituent  assembly.  It  can  make 
and  unmake  any  and  every  law,  change  the  form  of  gov- 
ernment or  the  successor  to  the  crown,  interfere  with  the 
course  of  justice,  extinguish  the  most  sacred  private 
rights  of  the  citizens."  The  word  "people,"  according 
to  the  commentaries  of  Ito,  has  a  singularly  interesting 
significance.  The  Komin  or  the  "people"  of  Japan  is 
nothing  more  than  Omitakara  or  the  "public  treasure." 
The  distinguished  commentators  or  rather  introducers  of 
the  Japanese  constitution  say:  "It  is  to  be  noticed  that 
there  has  been  instances  of  the  people  calling  themselves 
the  Emperor's  treasures,  as  may  be  seen  from  the  fol- 
lowing poem:  'Happy  are  we.  His  Majesty's  treasure, 
to  have  an  ample  recompense  for  our  earthly  existence 
in  having  been  born  at  an  epoch  so  full  of  prosperity  and 
glory.*  " 

Sec.  2.  The  full  meaning  of  the  term  "the  people"  in- 
cludes what  is  called  sovereignty.  This  necessary  impli- 
cation suggests  the  important  question  of  what  is  termed 


THE   PEOPLE.  5 

"the  sovereignty  of  the  people"  of  the  United  States. 
This  question  is  absolutely  practical  in  America,  and 
theoretical  on  the  other  sides  of  the  Pacific  and  Atlantic. 
The  sovereignty  or  supreme  power  resides  in  the  body  of 
the  people  in  the  American  contemplation.  The  Ameri- 
can idea  is  based  upon  the  thought  that  the  government 
is  a  mere  agency  established  by  the  people  for  the  exer- 
cise of  those  powers  which  reside  in  them,  and  no  portion 
of  sovereignty  resides  in  government. 

The  English  jurists  believe  that  the  jura  sunimi  im- 
perii, or  right  of  sovereignty,  resides  in  those  hands  in 
which  the  exercise  of  the  power  of  making  laws  is  placed. 

The  Empire  of  Japan  "shall  be  reigned  over  and  gov- 
erned by  a  line  of  Emperors  unbroken  for  ages  eternal,"  * 
which  the  compilers  construe  as  follows:  By  "reigned 
over  and  governed"  is  meant  that  "the  Emperor  on  His 
throne  combines  in  Himself  the  sovereignty  of  the  state 
and  the  government  of  the  country  and  of  his  subjects." 
The  compilers  quote  the  declaration  of  the  Japanese  Em- 
peror at  the  time  of  his  succession  to  the  throne:  "We 
shall  reduce  the  Realm  to  tranquility  and  bestow  Our  lov- 
ing care  upon  Our  beloved  subjects." 

It  will  be  admitted  by  all  that  sovereignty  is  not  recog- 
nized in  American  law  in  the  same  sense  in  which  it  is 
said  to  exist  under  the  Japanese  and  English  Constitu- 

*  Art.   I,  Japanese  Constitution. 


O  THE    PEOPLE. 

tions,  for  one  at  the  other  side  of  the  Pacific  exists  as  a 
divine  and  sacred  right  in  the  Emperor,  who  shall  not  be 
made  a  topic  of  derogatory  comment  nor  one  of  discus- 
sion, while  the  other  at  the  other  side  of  the  Atlantic  ex- 
ists as  a  right,  a  substantial  right,  an  absolute  right  in  a 
corporate  body,  a  person,  i.  e.,  parliament. 

The  first  Chief  Justice,  Jay,  of  the  U.  S.  Supreme 
Court,  said  what  was  true  then  and  still  remains  to  be 
true  when  he  drew  the  line  of  demarkation  between 
the  sovereignty  of  the  people  and  those  of  the  other  sides 
of  both  oceans :  "In  Europe  the  sovereignty  is  generally 
ascribed  to  the  princes ;  here  it  exists  with  the  people ; 
there  the  sovereign  actually  administers  the  government ; 
here,  never  in  a  single  instance.  Our  governors  are  the 
agents  of  the  people,  and  at  the  most  stand  in  the  same 
relation  to  their  sovereign  in  which  regents  in  Europe 
stand  to  their  sovereigns.  Their  princes  have  personal 
powers,  dignities  and  preeminence,  our  rulers  have  none 
but  official;  nor  do  they  partake  in  the  sovereignty 
otherwise  or  in  any  other  capacity,  than  as  private  citi- 
zens. 

Sec.  3.  The  inhabitants  of  the  colonies,  by  the  Declar- 
ation of  Independence  that  "all  men  are  created  equal," 
and  "that  governments  must  derive  their  just  powers 
from  the  governed"  destroyed  all  the  theories  of  sover- 
*  2  Dall.  472. 


THE    PEOPLE.  7 

eignty  and  substituted  by  the  same  instance  the  new, 
"that  the  sovereignty  derives  all  its  just  powers  from  the 
consent  of  the  individual"  as  a  political  fact,  as  a  practi- 
cal fact  and  as  a  legal  fact. 

In  the  formation  of  the  American  government  those 
who  assumed  to  act  at  the  Constitutional  Convention  to- 
ward framing  the  greatest  national  instrument  have  as- 
sumed to  act  in  the  name  of  the  "people."  When  it  came 
from  their  hands  it  was  an  unauthorized  proposition,  but 
when  it  was  submitted  to  the  people  for  adoption,  assent 
and  ratification  and  not  published  and  subscribed,  the  peo- 
ple acted  upon  it  in  the  only  manner  in  which  they  can  act 
safely,  effectively  on  such  a  subject.  The  second  Chief 
Justice,  Marshall,  made  clear  the  meaning  of  "the  people" 
in  the  preamble  of  the  Constitution  when  he  said  that 
from  these  conventions  the  Constitution  derives  its  whole 
authority.  The  government  proceeds  directly  from  the 
people;  is  ordained  and  established  in  the  name  of  the 
people;  and  is  declared  to  be  ordained  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domestic 
tranquility  and  secure  the  blessings  of  liberty  to  them- 
selves and  to  their  posterity.  The  assent  of  the  States  in 
their  sovereign  capacity,  is  implied  in  calling  a  convention 
and  thus  submitting  that  instrument  to  the  people.  But 
the  people  were  at  perfect  liberty  to  accept  or  reject  it; 
and  their  act  was  final.    It  required  not  the  affirmation  of 


8  THE    PEOPLE. 

the  State  and  could  not  be  negatived  by  the  State  govern- 
ments. The  Constitution  when  thus  adopted  was  of  com- 
plete obligation,  and  bound  the  State  sovereignties.  It 
has  been  said  that  the  people  had  already  surrendered 
all  their  powers  to  the  State  sovereignties  and  had  nothing 
more  to  give.  But,  surely,  the  question  whether  they  may 
resume  and  modify  the  powers  granted  to  government 
does  not  remain  to  be  settled  in  the  United  States.  Much 
more  might  the  legitimacy  of  the  general  government  be 
doubted  had  it  been  created  by  the  States.  The  powers 
delegated  to  the  State  sovereignties  were  to  be  exercised 
by  themselves,  not  by  a  distinct  and  independent  sov- 
ereignty erected  by  themselves.  To  the  formation  of  a 
league,  such  as  the  confederation,  the  State  sovereignties 
were  certainly  competent.  But  when,  "in  order  to  form  a 
more  perfect  union,"  it  was  deemed  necessary  to  change 
this  alliance  into  an  effective  government,  possessing  great 
and  sovereign  powers,  and  acting  directly  on  the  people's 
authority,  the  necessity  of  referring  it  to  the  people,  and 
of  receiving  the  powers  directly  from  them  was  felt  and 
acknowledged  by  all.  The  government  of  the  Union  is 
then  emphatically  and  truly  a  government  of  the  people. 
In  form  and  substance  it  emanates  from  them.  Its  pow- 
ers are  granted  by  them,  and  are  to  be  exercised  directly 
on  them  and  for  their  benefit.' 

^  McCulloch   V.    Maryland,   4   Wheaton   316;    4    Curtis    415. 


THE    PEOPLE.  9 

Sec.  4.  Now  the  unwritten  understanding  of  the  mean- 
ing of  "to  form  a  more  perfect  Union"  has  been  judic- 
ially determined,  and  such  judicial  conclusions  have 
been  accepted.  It  is  unnecessary  to  go  far  into  the  search. 
It  will  suffice  to  quote  the  following  well  known  decision 
of  the  United  States  Supreme  Court: 

"The  Union  of  the  States  never  was  a  purely  artificial 
and  arbitrary  relation.  It  began  among  the  colonies,  and 
grew  out  of  common  origin,  mutual  sympathies,  kindred 
principles,  similar  interests,  and  geographical  relations. 
It  was  confirmed  and  strengthened  by  the  necessities  of 
war,  and  received  definite  form,  and  character,  and  sanc- 
tion from  the  Articles  of  Confederation.  By  these  the 
Union  was  solemnly  declared  to  be  perpetual.  And  when 
these  Articles  were  found  to  be  inadequate  to  the  exigen- 
cies of  the  country,  the  Constitution  was  ordained  'to 
form  a  more  perfect  Union.'  It  is  difficult  to  convey  the 
idea  of  indissoluble  unity  more  clearly  than  by  these 
words.  What  can  be  indissoluble  if  a  perpetual  Union, 
made  more  perfect,  is  not  ?  But  the  perpetuity  and  indis- 
solubility of  the  Union,  by  no  means  implies  the  loss  of 
distinct  and  individual  existence,  or  of  the  right  of  self 
government  by  the  States.  Under  the  Article  of  Confed- 
eration each  State  retained  its  sovereignty,  freedom  and 
independence,  and  every  power,  jurisdiction  and  right  not 
expressly  delegated  to  the  United  States,  under  the  Con- 


10  THE    PEOPLE. 

stitution,  though  the  powers  of  the  States  were  much  re- 
stricted, still,  all  powers  not  delegated  to  the  United 
States,  nor  prohibited  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people." 

We  have  already  had  occasion  to  notice  the  expres- 
sion "the  people  of  each  State  compose  a  State,  having  its 
own  government,  and  endowed  with  all  the  functions  es- 
sential to  separate  and  independent  existence,"  and  that 
without  States  in  the  Union  there  could  be  no  such  polit- 
ical body  as  the  United  States.  Not  only,  therefore,  can 
there  be  no  loss  of  separate  and  independent  autonomy  to 
the  States  through  their  union  under  the  Constitution,  but 
it  may  with  reason  be  said  that  the  preservation  of  the 
States  and  the  maintenance  of  their  governments  are  as 
much  within  the  design  and  care  of  the  Constitution  as 
the  preservation  of  the  Union  and  the  maintenance  of 
the  national  government.  The  Constitution  in  all  its 
provisions  looks  to  an  "indestructible  Union  composed  of 
indestructible  States."  * 

Sec.  5.  We  are  safe  in  asserting  that  the  principles  un- 
derlying the  distribution  of  public  functions  between  dif- 
ferent bodies  was  not  invented  in  the  United  States.  The 
partition  of  the  powers  of  government  existed  in  Eng- 
land at  the  time  of  the  American  Revolution.  While 
this  is  true,  it  is  no  less  true  that  the  proposition  of  the 

'Texas  v.  White,  7  Wall.  7,  700-726. 


THE    PEOPLE.  13 

American  Constitution  to  separate,  yet  preserve  coordi- 
nation and  interdependence  of  the  several  branches  of 
government,  was  unique  and  apparently  different  from 
the  government  of  Great  Britain.  The  legal,  practical 
and  fundamental  difference  has  been  v^orked  out  during 
the  time  that  the  American  Constitution  has  been  in 
force.  Hence,  w^e  w^ill,  in  the  Articles  that  follow,  go 
back  to  the  olden  times  and  reason  out  the  idea  that  at  the 
time  of  the  framing  of  the  American  Constitution,  the 
Senators  represent  the  States ;  the  Members  of  the  House 
of  Representatives,  on  the  other  hand,  represent  local 
districts  in  the  United  States,  the  idea  being  to  give 
to  the  people  of  every  locality  equal  representation  ac- 
cording to  numbers,  distributing  the  burdens  of  the 
government  in  accordance  with  the  voice  of  its  councils. 
The  classification  of  the  American  power  of  govern- 
ment, with  its  peculiar  delicacies,  has  been  well  estab- 
lished. The  following  have  been  pointed  out :  The  leg- 
islative power,  which  is  the  power  to  make  the  laws  and 
to  alter  them  at  discretion;  the  executive,  which  is  the 
power  to  see  that  the  laws  are  duly  executed  and  en- 
forced; and  the  judicial,  which  is  the  power  to  construe 
and  apply  the  law  when  controversies  arise  concerning 
what  has  been  done  or  omitted  under  the  Constitution. 
Legislative  power,  according  to  the  American  legal  un- 
derstanding, deals  mainly  with  the  future,  and  executive 


14  THE    PEOPLE. 

power  with  the  present,  while  judicial  power  is  retro- 
spective, dealing  only  with  acts  done  or  threatened,  prom- 
ises made  and  injuries  suffered.  The  opinion  of  Chief 
Justice  Marshall  in  this  respect  will  conclude  the  exposi- 
tion of  this  idea.  The  expounder  of  the  American  Con- 
stitution said :  "The  difference  between  the  departments 
undoubtedly  is,  that  the  legislative  makes,  the  executive 
executed,  and  the  judiciary  construes  the  law;  but  the 
maker  of  the  law  may  commit  something  to  the  discretion 
of  the  other  departments."  ^ 

However,  little  analogy  exists  between  the  manner  of 
derivation  and  the  powers  and  rights  of  the  British  Par- 
liament and  the  American  Congress.  On  the  contrary, 
they  are  almost  opposite  in  nature  and  degree.  Mr.  Jus- 
tice Harlan,  in  an  important  case  on  this  point  in  the 
United  States  Supreme  Court,  said:  "In  view  of  the 
essential  difference  between  the  American  and  English 
government  in  respect  of  the  source  and  depositories  of 
power,  the  decisions  of  the  English  courts  on  this  subject 
are  entitled  to  but  little  credit.'" 

Sec.  6.  Keeping  always  in  view  that  paradoxical  yet 
fundamental  difference  of  the  idea  underlying  the  dis- 
tribution of  the  powers  of  the  governments  of  Great 
Britain  and  the  United  States,  let  us  proceed  a  step  fur- 
ther, so  that  we  will  see  the  understandings  of  the  legis- 

*  Nayman  v.  Southard,  lo  Wheat,  i,  46. 

*  Tindal  v.  Wesley,  167  U.  S.  204-214. 


THE    PEOPLE.  15 

lative  powers  of  the   British   ParHament,   the  Japanese 
Diet,  and  the  American  Congress. 

In  the  British  legal  theory,  between  the  parHament  and 
the  people  at  large  there  is  no  legal  distinction,  because 
the  whole  plentitude  of  the  peoples'  rights  and  powers 
resides  in  it,  just  as  if  the  whole  nation  were  present 
within  the  chamber  where  it  sits.  Practically,  the  British 
Parliament  is  the  depository  of  the  authority  of  the  na- 
tion, and  is  therefore  omnipotent.  The  Japanese  Diet, 
or  parliament,  on  the  other  hand,  has  no  share  whatso- 
ever in  the  sovereign  power.  It  is  true  that  it  takes  part 
in  legislation  and  also  has  power  to  deliberate  upon  laws, 
but  none  to  determine  them.  The  Japanese  compilors  of 
the  Imperial  Constitution  say  that  the  Imperial  Diet  has 
the  certain  responsibility  of  keeping  a  supervision  over 
the  administration.  We  admit  that  this  be  true.  But 
we,  who  claim  the  right  of  professional  knowledge,  all 
agree  that  such  power  is  indirect.  The  legislative  power 
in  the  Diet  is  founded  on  the  unique  proposition  to 
merely  serve  the  political  machinery  for  the  sake  of  a  con- 
stitutional government.  Nowhere  in  the  great  charter 
of  Japanese  liberty  can  it  be  found  that  the  legislative 
powers  are  the  original  authority  or  omnipotent,  as  those 
of  the  British  government,  nor  have  they  delegated  au- 
thority or  inherent  right  to  accomplish  all  objects  within 
the  orbit  of  the  legislative  department,  as  those  of  the 


l6  THE    PEOPLE. 

American  government.  All  the  different  legislative  pow- 
ers are  fundamentally  and  practically  vested  in  the  Most 
Exalted  Personage,  His  Majesty,  the  Emperor  of  Japan, 
the  Creator  of  the  Imperial  Constitution,  the  source  and 
fountain  head  of  all  political  life  of  great  Japan  herself. 
Sec.  7.  When  all  the  powers  of  sovereignty  are  exer- 
cised by  a  single  person,  as  is  the  case  in  Japan,  or  body, 
as  in  England,  who  alone  makes  laws,  determines  com- 
plaints of  their  violation,  and  attends  to  their  execution, 
the  question  of  a  distribution  of  powers  can  have  only  a 
theoretical  importance,  for  the  obvious  reason  that  noth- 
ing can  depend  upon  it,  which  can  have  practical  influ- 
ence upon  the  happiness  and  welfare  of  the  people.  But, 
inasmuch  as  a  government  with  all  its  powers  thus  con- 
centrated must  of  necessity  be  an  arbitrary  government, 
in  which  passion  and  caprice  is  as  likely  to  dictate  the 
course  of  public  affairs  as  a  sense  of  right  and  justice, 
it  is  a  maxim  in  political  science  that  in  order  to  insure 
due  recognition  and  protection  of  rights,  the  powers  of 
government  must  be  classified  according  to  their  nature, 
and  each  class  intrusted  for  exercise  to  a  different  de- 
partment of  the  government.  This  arrangement  gives 
each  department  a  certain  independence,  which  operates  as 
a  restraint  upon  such  action  of  the  other  as  might  encroach 
on  the  rights  and  liberties  of  the  people,  and  makes  it 
possible  to  establish  and  enforce  guaranties  against  at- 


THE    PEOPLE.  17 

tempts  at  tyranny.  After  all,  we  must  confess  the  truth, 
that  the  legislative,  the  executive  and  the  judicial  powers 
of  the  United  States  are  subjects  broader  in  their  extent 
than  the  scope  of  any  one  man's  treatment  and  reach. 

It  may  be  said  that  material  so  abundant  and  volumi- 
nous should  be  approached  by  a  logical  and  regular 
method,  otherwise  no  concise  and  clear  presentation  of 
the  fundamental  principles  of  the  subject  should  be  at- 
tempted. It  may  also  be  said  that  if  the  analysis  is  just 
and  the  distinction  clear,  a  broader  conception  of  the  sub- 
ject may  be  obtained  than  by  an  exhaustive  presentation 
of  all.  Neither  is  our  plan.  It  is  beyond  the  power  of 
man  to  perceive  and  materialize  either  process.  All  that 
we  venture  is  to  try  to  show  what  we  understand  the 
Legislative,  the  Executive,  and  the  Judicial  powers  of 
the  United  States  to  he,  as  applied  to  the  daily  affairs  and 
transactions  of  life.  For  the  powers,  per  se,  is  the  same 
from  the  beginning  to  the  end,  but  the  powers  which  we 
see  is  the  unwritten  understanding  of  the  written  Con- 
stitution, interpreted,  construed  and  applied  by  the  proper 
tribunals. 


CONGRESS 


CONGRESS 


ARTICLE  II. 


"All  legislative  powers  herein  granted  shall  be  vested  in  a  Con- 
gress of  the  United  States,  which  shall  consist  of  a  Senate  and  a 
House  of  Representatives." — Article  I,  Section  i,  the  Constitution. 

Section  8.  The  aim  of  every  political  constitution  is, 
or  ought  to  be,  first,  to  obtain  for  rulers,  men  who  pos- 
sess most  wisdom  to  discern,  and  most  virtue  to  pursue, 
the  common  good  of  the  society;  and,  in  the  next  place, 
to  take  the  most  effectual  precautions  for  keeping  them 
virtuous,  whilst  they  continue  to  hold  their  public  trust. 
The  elective  mode  of  obtaining  rulers  is  the  characteristic 
policy  of  republican  government.  The  means  relied  on  in 
this  form  of  government  for  preventing  their  degeneracy 
are  numerous  and  various.  The  most  effectual  one,  is 
such  a  limitation  of  the  term  of  appointments  as  will 
maintain  a  proper  responsibility  to  the  people.' 

The  electors  of  the  representatives  are  not  the  rich,  more 
than  the  poor;  not  the  learned  more  than  the  ignorant; 
not  the  haughty  heirs  of  distinguished  names  more  than 
the  humble  sons  of  obscurity  and  unpropitious  fortune. 
*  No.  LVII  Federalists. 


22  CONGRESS. 

The  electors  are  to  be  the  great  body  of  the  people  of 
the  United  States.  They  are  to  be  the  same  who  exercise 
the  right  in  every  State  of  electing  the  correspondent 
branch  of  the  legislature  of  the  State. 

The  objects  of  popular  choice  are  to  be  every  citizen 
whose  merit  may  recommend  him  to  the  esteem  and  con- 
fidence of  his  country.  No  qualification  of  wealth,  or 
birth,  or  religious  faith,  or  of  civil  profession,  is  permit- 
ted to  fetter  the  judgment  or  disappoint  the  inclination 
of  the  people. 

If  we  consider  the  situation  of  the  men  on  whom  the 
free  suffrage  of  their  fellow  citizens  may  confer  the  rep- 
resentative trusts,  we  shall  find  it  involving  every  security 
which  can  be  devised  or  desired  for  their  fidelity  to  their 
constituents. 

In  the  first  place,  as  they  will  have  been  distinguished 
by  the  preference  of  their  fellow  citizens,  we  are  to  pre- 
sume that  in  general  they  will  be  somewhat  distinguished 
also  by  those  qualities  which  entitle  them  to  it,  and  which 
promise  a  sincere  and  scrupulous  regard  to  the  nature  of 
their  engagements.  In  the  second  place,  they  will  enter 
into  the  public  service  under  circumstances  which  can 
i'not  fail  to  produce  a  temporary  affection  at  least  to  their 
•  constituents.  There  is  in  every  breast  a  sensibility  to 
marks  of  honor,  of  favor,  of  esteem,  and  of  confidence, 
which,  apart  from  all  considerations  of  interest,  is  some 


CONGRESS. 


23 


pledge  for  grateful  and  benevolent  returns.  Ingratitude 
is  a  common  topic  of  declamation  against  human  nature; 
and  it  must  be  confessed  that  instances  of  it  are  but  too 
frequent  and  flagrant,  both  in  public  and  private  life. 
But  the  universal  and  extreme  indignation  which  it  in- 
spires is  itself  a  proof  of  energy  and  prevalence  of  the 
contrary  sentiment.  In  the  third  place,  those  ties  which 
bind  the  representative  to  his  constituents  are  strength- 
ened by  motives  of  a  more  selfish  nature.  His  pride  and 
vanity  attach  him  a  share  in  its  honors  and  distinctions. 
Whatever  hopes  or  projects  might  be  entertained  by  a 
few  aspiring  characters,  it  must  generally  happen  that  a 
great  proportion  of  the  men  deriving  their  advancement 
from  their  influence  with  the  people  would  have  more 
to  hope  from  a  preservation  of  their  favor  than  from 
innovation  in  the  government  subservive  of  the  authority 
of  the  people.  In  the  fourth  place,  all  these  securities 
would  be  found  sufficient  with  the  restraint  of  frequent 
elections.  The  House  of  Representatives  is  so  constituted 
as  to  support  in  the  members  an  habitual  recollection  of 
their  dependence  on  the  people.  Before  the  sentiment 
impressed  on  their  minds  by  the  mode  of  their  elevation 
can  be  effaced  by  the  exercise  of  power,  they  will  be  com- 
pelled to  anticipate  the  moment  when  their  power  is  to 
cease,  when  their  exercise  of  it  is  to  be  reviewed,  and 
when  they  must  descend  to  the  level  from  which  they  are 


24  CONGRESS. 

raised;  there  forever  to  remain,  unless  a  faithful  dis- 
charge of  their  trust  shall  have  established  their  title  to 
a  renewal  of  it. 

We  will  add,  as  a  fifth  circumstance  in  the  situation  of 
the  House  of  Representatives  restraining  them  from  op- 
pressive measures,  that  they  can  make  no  law  which  will 
not  have  its  full  operation  on  themselves  and  their  friends, 
as  well  as  on  the  great  mass  of  the  society.  This  has 
always  been  deemed  one  of  the  strongest  bonds  by  which 
human  policy  can  connect  the  rulers  and  the  people  to- 
gether. It  creates  between  them  that  communion  of  in- 
terest and  sympathy  of  sentiment,  of  which  few  gov- 
ernments have  furnished  examples;  but  without  which 
every  government  degenerates  into  tyranny.  If  it  be 
asked  what  is  to  restrain  the  House  of  Representatives 
from  making  legal  discriminations  in  favor  of  themselves 
and  a  particular  class  of  the  society,  we  answer,  the 
genius  of  the  whole  system;  the  nature  of  just  and  con- 
stitutional laws;  and  above  all,  the  vigilant  and  manly 
spirit  which  actuates  the  people  of  America;  a  spirit 
which  nourishes  freedom  and  in  return  is  nourished  by 
it.  If  this  spirit  shall  ever  be  so  far  debased  as  to  toler- 
ate a  law  not  obligatory  on  the  legislature,  as  well  as  on 
the  people,  the  people  will  be  prepared  to  tolerate  any- 
thing but  liberty. 

Sec.  9.  I  enter  next  on  the  examination  of  the  Senate. 


CONGRESS.  25 

The  qualification  of  Senators,  as  distinguished  from 
those  of  Representatives,  consists  in  a  more  advanced 
age,  a  longer  period  of  citizenship,  and  a  longer  ap- 
pointment of  office.  A  Senator  must  be  thirty  years  of 
age  at  least;  as  a  Representative's  must  be  twenty-five. 
The  former  must  have  been  a  citizen  nine  years ;  as  seven 
years  are  required  for  the  latter.  And  the  duration  of 
the  office  of  Senator  is  six  years  while  that  of  Repre- 
sentative is  two  years. 

In  the  first  place,  the  propriety  of  these  distinctions  is 
explained  by  the  nature  of  the  senatorial  trust,  which, 
requiring  greater  extent  of  information  and  stability  of 
character,  requires,  at  the  same  time,  that  the  Senator 
should  have  reached  a  period  of  life  most  likely  to  sup- 
ply these  advantages,  and  which,  participating  immedi- 
ately in  transactions  with  foreign  nations,  ought  to  be 
exercised  by  none  who  are  not  thoroughly  weaned  from 
the  prepossessions  and  habits  incident  to  foreign  birth 
and  education.  The  term  of  nine  years  appears  to  be  a 
prudent  mediocrity  between  a  total  exclusion  of  adopted 
citizens,  whose  merits  and  talents  may  claim  a  share  in 
the  public  confidence,  and  an  indiscriminate  and  hasty 
admission  of  them,  which  might  create  a  channel  for 
foreign  influence  on  the  national  council. 

In  the  second  place,  it  is  equally  unnecessary  to  dilate 
on  the  appointment  of  Senators  by  the  State  legislature. 


26  CONGRESS. 

Among  the  various  modes  which  might  have  been  de- 
vised for  constituting  this  branch  of  the  government, 
that  v^hich  has  been  proposed  by  the  convention  ^  is  prob- 
ably the  most  congenial  with  the  public  opinion.  It  is 
recommended  by  the  double  advantage  of  favoring  a  se- 
lect appointment  and  of  giving  to  the  State  government, 
as  must  secure  the  authority  of  the  former  and  may  form 
a  convenient  link  between  the  two  systems. 

In  the  third  place,  the  equality  of  representation  in  the 
Senate  is  another  point  which,  being  evidently  the  result 
of  compromise  between  the  opposite  pretentions  of  the 
large  and  the  small  States,  does  not  call  for  much  dis- 
cussion. That  the  equal  vote  allowed  to  each  State  is 
at  once  a  constitutional  recognition  of  the  portion  of  sov- 
ereignty remaining  in  the  individual  State,  and  an  in- 
strument for  preserving  that  residuary  sovereignty.  An- 
other advantage  accruing  from  this  ingredient  in  the  con- 
stitution of  the  Senate  is,  the  additional  impediment  it 
must  prove  against  improper  acts  of  legislation.  No  law 
or  resolution  can  now  be  passed  without  the  concurrence 
first  of  a  majority  of  the  people,  and  then  of  a  majority 
of  the  States. 

In  the  fourth  place,  the  duration  of  their  appointments 
come  next  to  be  considered.  The  mutability  in  the  pub- 
lic councils  arising  from  a  rapid  succession  of  new  mem- 

'  No.  LXI  The  Federalists. 


CONGRESS. 


27 


bers,  however  qualified  they  may  be,  points  out  in  the 
strongest  manner  the  necessity  of  some  stable  institution 
in  the  government.  Every  new  election  in  the  States  is 
found  to  change  one-half  of  the  Representatives.  From 
this  change  of  men  must  proceed  a  change  of  opinions, 
and  from  a  change  of  opinions  a  change  of  measures. 
But  a  continual  change  even  of  good  measures  is  incon- 
sistent with  every  rule  of  prudence  and  every  prospect  of 
success.  The  remark  is  verified  in  private  life  and  be- 
comes more  just  as  well  as  more  important  in  national 
transaction.  Another  effect  of  public  instability  is  the 
unreasonable  advantage  it  gives  to  the  sagacious,  the 
enterpising,  and  the  moneyed  few,  over  the  industrious 
and  uninformed  mass  of  the  people.  But  the  most  deplor- 
able effect  of  all  is  that  diminution  of  attachment  and  rev- 
erence which  steals  into  the  hearts  of  the  people  towards 
a  political  system  which  betrays  so  many  marks  of  infirm- 
ity and  disappoints  so  many  of  their  flattering  hopes. 
No  government,  any  more  than  an  individual,  will  long 
be  respected  without  being  truly  respectable,  nor  be  truly 
respectable  without  possessing  a  certain  portion  of  order 
and  stability. 

In  the  fifth  place,  we  add  that  there  may  be  many 
who  will  say  that  a  Senate  appointed  not  immediately 
by  the  people  and  for  the  term  of  six  years,  must  gradu- 
ally acquire  a  dangerous  pre-eminence  in  the  govern- 


28  CONGRESS. 

ment  and  finally  transform  it  into  a  tyrannical  aristocracy. 
To  this  we  answer,  in  the  language  of  Mr.  James  Madi- 
son who,  with  Alexander  Hamilton  and  John  Jay,  cham- 
pioned the  cause  for  the  adoption  of  the  Constitution : 
"Before  such  a  revolution  can  be  effected,  the  Senate,  it  is 
to  be  observed,  must  in  the  first  place  corrupt  itself ;  must 
next  corrupt  the  State  legislature;  must  then  corrupt  the 
House  of  Representatives;  and  must  finally  corrupt  the 
people  at  large.  It  is  evident  that  the  Senate  must  be 
first  corrupted  before  it  can  attempt  an  establishment 
of  tyranny.  Without  corrupting  the  legislature  it  can 
not  prosecute  the  attempt,  because  the  periodical  change 
of  members  would  otherwise  regenerate  the  whole  body. 
Without  exerting  the  means  of  corruption  with  equal 
success  on  the  House  of  Representatives,  the  opposition 
of  that  co-equal  branch  of  the  government  would  inevit- 
ably defeat  the  attempt;  and  without  corrupting  the  peo- 
ple themselves  a  succession  of  new  Representatives  would 
speedily  restore  all  things  to  their  pristine  order." 

Having  examined  the  unique  systems  of  the  House  of 
Representatives  and  the  Senate,  let  us  now  proceed  for 
the  investigation  of  the  powers. 

Sec.  10.  In  the  specific  enumeration  of  national  powers 
it  is  first  declared  that  "the  Congress  shall  have  the  power 
to  lay  and  collect  taxes,  duties,  imports,  and  excises,  to 
pay  the  debts,  and  provide  for  the  common  defense  and 


CONGRESS. 


31 


general  welfare  of  the  United  States ;  but  all  duties,  im- 
ports and  excises  shall  be  uniform  throughout  the  United 
States.'" 

The  power  to  tax  is  an  incident  of  sovereignty,  and  is 
co-extensive  with  the  subjects  to  which  the  sovereignty 
extend.  It  is  unlimited  in  the  range,  acknowledging  in 
its  very  nature  no  limit  so  that  security  against  its  abuse 
is  to  be  found  only  in  the  responsibility  of  the  legislature 
which  imposes  the  tax  to  the  constituency  who  are  to  pay 
it/ 

This  specific  power  of  the  national  legislature  is  vitally 
important  for  the  maintenance  of  the  government;  want 
of  this  power  was  chief  among  the  causes  for  the  failure 
of  the  old  confederacy. 

It  was  also  this  power,  misapplied  and  arbitrarily  im- 
posed, which  was  the  principle  cause  for  the  separation 
of  the  English  colonies  in  North  America  from  the 
mother  country.  Chief  Justice  Bradley  of  the  Supreme 
Court  of  the  United  States  in  this  regard  said : 

"England  has  no  written  constitution,  it  is  true,  but  it 
has  an  unwritten  one,  resting  on  the  acknowledged 
and  frequently  declared  privileges  of  parliament  and  the 
people,  to  violate  which  in  any  material  respect  would 

^Art.  I,  Sec.  8,  U.  S.  Const.  3  Gallatin's  Writings  (Adams'  Ed.). 
Pollock  V.  Farmers'  Loan  and  Trust  Co.,  157  U.  S.  429-569. 

^  Veazie  Bank  v.  Fenno,  8  Wall.  533.  Scholey  v.  Revv.,  23  Wall. 
331.  Hylton  V.  United  States,  3  Dall.  171.  Income  Tax  case,  158 
U.  S.  601. 


32  CONGRESS. 

produce  a  revolution  in  an  hour.  A  violation  of  one  of 
the  fundamental  principles  of  that  constitution  in  the 
colonies,  namely,  the  principle  that  recognizes  the  prop- 
erty of  the  people  as  their  own,  and  which,  therefore, 
regards  all  taxes  for  the  support  of  government  as  gifts 
of  the  people  through  their  representatives,  and  regards 
taxation  without  representation  as  subversive  of  free 
government,  was  the  origin  of  our  own  revolution."^ 

The  word  "taxes"  is  defined  in  the  most  enlarged 
sense  as  embracing  all  the  regular  impositions  made  by 
the  government  upon  the  persons,  property,  privileges, 
occupations,  and  enjoyments  of  the  people  for  the  pur- 
pose of  raising  public  revenue.  "Duties,  imposts  and  ex- 
cises" imposed  for  this  purpose  are  in  a  strict  sense 
"taxes."  But  the  word  "taxes"  is  often  used  in  contra- 
distinction to  these  levies;  it  conduced  to  certainty  to 
name  them  separately.  The  terms  "duties"  and  "im- 
posts" are  nearly  synonymous,  and  are  usually  applied 
to  the  levies  made  by  the  government  on  the  importa- 
tion or  exportation  of  commodities;  while  the  term  "ex- 
cises" is  applied  to  the  taxes  laid  upon  the  manufacture, 
sale  or  consumption  of  commodities  within  the  country, 
and  upon  licenses  to  pursue  certain  occupations.'' 

There  is  nothing  which  can  be  the  subject  of  property 

^Slaughter  House  cases,  i6  Wall.  36-115. 

^Loan  Association  v.  Topeka,  20  Wall.  655,  664;  State  v.  Western 
Union  Telegraph  Co.,  TZ  Me.  518.     Cooley  on  Taxation,  pp.  3,  23. 


CONGRESS.  33 

that  can  not  be  the  subject  of  taxation.  Of  all  burdens 
imposed  upon  mankind  that  of  grinding  taxation  is  the 
most  cruel.  It  is  not  taxation  that  a  government  should 
take  from  one  the  profits  and  gains  of  another.  That  is 
taxation  which  compels  one  to  pay  for  the  support  of  the 
government  from  his  own  gains  and  of  his  own  property. 

Every  one  admits  and  no  one  denies  that  the  question 
of  the  understanding  of  "taxation,"  in  the  American 
legal  contemplation,  we  must  approach  with  hesitation. 

In  construing  the  American  understanding  of  taxation, 
Mr.  Justice  Miller  delivered  the  opinion  of  the  United 
States  Supreme  Court.  He  said :  "It  must  be  conceded 
that  there  are  such  rights  in  every  free  government  be- 
yond the  control  of  the  State.  A  government  which 
recognized  no  such  rights,  which  held  the  lives,  the  lib- 
erty and  the  property  of  its  citizens  at  all  times  to  the 
absolute  disposition  and  unlimited  control  of  even  the 
most  democratic  depository  of  power,  is  after  all  but  a 
despotism.  It  is  true,  it  is  a  despotism  of  the  many,  of 
the  majority,  if  you  please  to  call  it  so,  but  it  is  none  the 
less  a  despotism.  It  may  be  doubted  if  a  man  is  to  hold 
all  that  he  is  accustomed  to  call  his  own,  all  in  which  he 
has  placed  his  happiness,  and  the  security  of  which  is  es- 
sential to  that  happiness,  under  the  unlimited  dominion  of 
others,  whether  it  is  not  wiser  that  this  power  should  be 
held  by  one  man  than  by  many." 


34  CONGRESS. 

The  theory  of  American  government,  State  and  Na- 
tional, is  opposed  to  the  deposit  of  unlimited  power  any- 
where. The  executive,  the  legislative  and  the  judicial 
branches  of  these  governments  are  all  of  limited  and  de- 
fined powers. 

There  are  limitations  on  such  power,  which  grow  out 
of  the  essential  nature  of  all  free  governments.  These  are 
implied  reservations  of  individual  rights,  without  which 
the  social  compact  could  not  exist,  and  which  are  respected 
by  all  governments  entitled  to  the  name.  No  court,  for 
instance,  would  hesitate  to  declare  void  a  statute  which 
enacted  that  A  and  B,  who  were  husband  and  wife  to 
each  other,  should  be  so  no  longer,  but  that  A  should  there- 
after be  the  husband  of  C  and  B  the  wife  of  D ;  or  which 
would  enact  that  the  homestead  now  owned  by  A  should 
no  longer  be  his  but  the  property  of  B.* 

Of  all  the  powers  conferred  upon  government  that  of 
taxation  is  most  liable  to  abuse.  Given  a  purpose  or  sub- 
ject for  which  taxation  may  be  lawfully  used,  and  the  ex- 
tent of  its  exercise  is  in  its  very  nature  unlimited.  It  is 
true  that  express  limitations  on  the  amount  of  tax  to  be 
levied  or  the  things  to  be  taxed  may  be  imposed  by  con- 
stitution or  statute,  but  in  most  instances  for  which  taxes 
are  levied,  as  the  support  of  government,  the  prosecution 
of  war,  the  national  defense,  any  limitation  is  unsafe. 

^  Whitney  v.  Fond  du  Lac,  25  Wis.  188 ;  Cooley  on  Constitutional 
Limitation,   129,   175,  487;  Dillon  on  Municipal   Corporation,  587. 


CONGRESS.  35 

The  entire  resources  of  the  people  should  in  some  in- 
stances be  at  the  disposal  of  the  government. 

The  power  to  tax  is,  therefore,  the  strongest,  the  most 
prevailing  of  all  the  powers  of  government,  reaching  di- 
rectly or  indirectly  to  all  classes  of  the  people.'  It  was 
said  by  Chief  Justice  Marshall,  that  the  "power  to  tax 
is  the  power  to  destroy."  A  striking  instance  of  the  truth 
of  this  proposition  is  seen  in  the  fact  that  the  existing 
tax  of  ten  per  cent,  imposed  by  the  United  States  on  the 
circulation  of  all  other  banks  than  the  national  banks, 
drove  out  of  existence  every  State  bank  circulation  within 
a  year  or  two  after  its  passage.  This  power  can  as  readily 
be  employed  against  one  class  of  individuals  as  in  favor 
of  another,  so  that  one  class  may  be  ruined  and  the  other 
given  unlimited  wealth  and  prosperity,  if  there  is  no 
implied  limitation  to  the  uses  for  which  the  power  may  be 
exercised. 

To  lay,  with  one  hand,  the  power  of  government  on 
the  property  of  the  citizen,  and,  with  the  other,  to  bestow 
it  upon  favored  individuals  to  aid  private  enterprise  and 
build  up  private  fortunes,  is  none  the  less  a  robbery  be- 
cause it  is  done  under  the  forms  of  law  and  is  called  tax- 
ation. This  is  not  legislation.  It  is  a  decree  under  legis- 
lative forms.  Nor  is  it  taxation.  A  "tax,"  says  Web- 
ster's dictionary,  "is  a  rate  or  sum  of  money  assessed  on 

'Springer  v.  United  States,  132  U.  S.  586;  Hylton  v.  U.  S.,  3 
Dall  171.    Pacific  Ins.  Co.  v.  Soule,  7  Wall.  433. 


36  CONGRESS. 

the  person  or  property  of  a  citizen  by  government  for  the 
use  of  the  nation  or  State."  "Taxes  are  burdens  or 
charges  imposed  by  the  legislature  upon  persons  or  prop- 
erty to  raise  money  for  public  purposes."' 

Coulter,  Judge  of  Pennsylvania,  in  the  case  of  North- 
ern Liberties  against  St.  John's  Church,  says  very  for- 
cibly, "I  think  the  common  mind  has  everywhere  taken 
in  the  understanding  that  taxes  are  a  public  imposition, 
levied  by  authority  of  the  government  for  the  purpose 
of  carrying  on  the  government  in  all  its  machinery  and 
operation — that  they  are  imposed  for  a  public  purpose." 

We  have  established,  we  think,  beyond  cavil  that  there 
can  be  no  lawful  tax  which  is  not  laid  for  a  public  pur- 
pose." 

Sec.  II.  It  is  further  provided  in  the  Constitution  that 
Congress  shall  have  power  "to  borrow  money  on  the 
credit  of  the  United  States."'  The  understanding  is 
well  expressed  by  Chief  Justice  Chase  when  he  rendered 
the  opinion  of  the  United  States  Supreme  Court  in  an- 
swering the  question  "Were  the  obligations  of  the  United 
States,  known  as  certificates  of  indebtedness,  liable  to 
State  taxation?"  The  jurist  went  on  to  say  that  the 
authority  to  borrow  money  on  the  credit  of  the  United 
States  is,  in  the  enumeration  of  the  powers,  expressly 

^  Cooley  on  Constitutional  Limitation,  479.  Veagie  Bank  v.  Fenno, 
8  Wall.  533- 

^  Loan  Association  v.  Topeka,  20  Wall.  655. 
^United  States  Constitution,  Article  I,  8. 


CONGRESS. 


37 


granted  by  the  Constitution,  second  in  place  and  only  sec- 
ond in  importance  to  the  authority  to  lay  and  collect 
taxes.  Both  are  given  as  means  to  the  exercise  of  the 
functions  of  government  under  the  Constitution;  and 
both,  if  neither  had  been  expressly  conferred,  would  be 
necessarily  implied  from  other  powers.  For  no  one  will 
assert  that  without  them  the  great  powers  could  be  exer- 
cised at  all.'  The  Chief  Justice  continued:  "The  prin- 
ciple of  exemption  is,  that  the  States  can  not  control  the 
national  government  within  the  sphere  of  its  constitu- 
tional powers — for  there  it  is  supreme — and  can  not  tax 
its  obligations  for  payment  of  money  issued  for  purposes 
within  that  range  of  powers,  because  such  taxation  nec- 
-essarily  implies  the  assertion  of  the  right  to  exercise  such 
control."  This  opinion  was  supported  with  reference  to 
the  construction  made  by  Chief  Justice  Marshall,  who 
said  that  the  American  people  have  conferred  the 
power  of  borrowing  money  upon  their  government,  and 
by  making  that  government  supreme  have  shielded  its  ac- 
tion in  the  exercise  of  that  power,  is  incompatible  with  a 
restraining  or  controlling  power,  and  the  declaration  that 
no  such  restraining  or  contolling  power  shall  be  exer- 
cised.' 

In  the  case  of  Bank  v.  Supervisors,  the  application  of 
the  understanding  is  made  extensively  yet  clearly.     In 

'  The  Banks  v.  the  Mayor,  7  Wall.  16. 

'  Weston  V.  the  City  of  Charleston,  2  Pet.  449. 


38  CONGRESS. 

this  case  the  United  States  notes  became  the  subject  of 
discussion  and  construction  in  regard  to  State  taxation. 

In  the  contentions  of  the  parties  against  the  specific 
power  of  Congress,  the  important  and  interesting  point 
was  this,  that  as  far  as  the  credit  of  the  United  States 
was  involved  in  the  issue  of  these  notes,  no  greater  re- 
sponsibihty  was  assumed  by  any  government  in  coining 
or  otherwise  affixing  a  stamp  to  metal,  and  affixing  to  it 
a  certain  nominal  value,  although  by  mixing  or  debasing 
the  metal,  its  real  value,  in  use  or  exchange,  may  have 
been  totally  destroyed.  The  acts  in  question  did  but 
endeavor  to  confer  a  prescribed  value  on  certain  stamped 
paper,  which  they  compelled  the  citizens  of  the  United 
States  to  take  in  payment  of  all  debts  due,  or  to  become 
due  by  the  government  to  them,  or  by  them  to  the  govern- 
ment, or  to  one  another.  By  this  means,  instead  of  bor- 
rowing money,  Congress  made  money,  and  rendered  bor- 
rowing unnecessary.  The  protection  from  State  interfer- 
ence accorded  by  the  Constitution  in  the  exercise  by  the 
government  of  the  power  of  borrowing,  can  not  be  in- 
voked in  such  a  case. 

In  this  contention,  however,  the  United  State  Supreme 
Court  decided  that  "the  notes  issued  under  the  acts 
of  Congress,  intended  to  circulate  as  money,  and  actually 
constituting,  with  the  national  bank  notes,  the  ordinary 
circulating  medium  of  the  country,  are  moreover,  obliga- 


CONGRESS.  41 

tions  of  the  national  government,  and  exempt  from  State 
taxation." ' 

Sec.  12.  The  Congress  is  further  empowered  to  "regu- 
late commerce  with  foreign  nations  among  the  several 
States  and  with  the  Indian  Tribes." 

To  thoroughly  understand  the  commerce  clause  of  the 
Constitution  it  becomes  necessary  to  discuss  and  construct 
the  powers  of  the  State  imposing  tax,  enacting  quarantine 
laws,  harbor  regulation,  exacting  licenses,  prohibiting  the 
sale  of  certain  noxious  goods  or  articles,  prohibiting  the 
transportation  through  the  State  of  animals  or  persons 
infected  with  disease,  or  prohibiting  the  entry  into  the 
State  of  persons  deemed  unfit  by  the  people  of  the  State 
to  mingle  with  them.  So  that  we  may  keep  in  view  such 
as  these  powers  and  the  limitations  to  these  powers  when 
they  come  in  contact  with  the  commerce  clause  in  the 
Federal  Constitution,  while  at  the  same  time,  discuss  the 
understanding  of  the  nature  of  the  power  conferred  by 
the  commerce  clause  and  the  extent  of  its  exercise  by  the 
American  Congress,  which  is  the  proper  and  main  under- 
taking of  the  present  work. 

The  conspicuous  words  in  the  commerce  clause  are 

"to  regulate  commerce."   They  at  once  suggest  the  extent 

of  power  which  is  to  "regulate,"  and  the  subject  of  the 

regulation  which   is   "commerce."     The  United   States 

^  Bank  v.  Supervisor,  7  Wall.  26,  31. 


42  CONGRESS. 

Supreme  Court  had  from  time  to  time  discussed  and  con- 
structed the  unwritten  understanding  of  the  extent  and 
the  subject  of  the  power.  Nevertheless,  the  judges  in  the 
same  cases  have  occasionally  disagreed  in  several  import- 
ant particulars,  one  overruling  another's  decision.  Our 
task,  therefore,  must  be  not  only  reviewing  the  different 
decisions  of  the  Supreme  Court,  but  also  to  distinguish 
the  points  and  emphasize  those  upon  which  the  under- 
standing shall  have  been  reached. 

Commerce  naturally  includes  traffic  or  buying  or  sell- 
ing of  goods  and  commodities.  It  embraces  transporta- 
tion of  persons  and  of  tangible  things,  and  the  exigencies 
of  modern  business  have  brought  to  play,  as  an  instru- 
ment of  commerce,  the  transmissions  of  messages  by  tele- 
graph and  telephone.'  Not  only  does  it  include  navigation 
and  all  other  forms  of  intercourse,  but  it  includes  all  the 
instruments  by  which  it  is  accomplished,  viz.,  steamboats, 
steam  railways,  stage  coaches,  bridges,  wharves,  depots, 
streams,  canals,  lakes  and  everything  else  which  may  be 
termed  essential  and  convenient  for  the  exercise  of  com- 
merce. Even  an  embargo  act  is  judicially  constructed 
within  the  power,  although  it  may  seem  to  us  to  be  the 
utmost  limit  of  construction  power  under  the  Constitution. 
The  embargo  act  of  the  American  Congress,  when  it  was 

^  Pensacola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.,  96 
U.  S.  I. 


CONGRESS,  43 

enforced  upon  all  commerce  with  Great  Britain  and 
France,  was  contested  as  unconstitutional.  It  was  vig- 
orously urged  that  it  is  a  branch  of  the  war-making 
power.  It  is  an  instrument  of  war  and  not  a  regulator 
of  trade.  But  we  must  not  lose  sight  of  the  reason  of 
law.  The  power  which  controls  commerce  must  from 
the  very  nature  of  things  include  the  power  to  restrict 
and  limit.  Chief  Justice  Marshall,  in  the  case  of  Gibbon 
V.  Ogden,  said:  "When  Congress  imposed  embargo 
which  for  a  time  engaged  the  attention  of  every  man  in 
the  United  States,  the  avowed  object  of  the  law  was 
the  protection  of  commerce  and  the  avoiding  of  war. 
By  its  friends  and  its  enemies  it  was  treated  as  a  com- 
mercial not  as  a  war  measure.  The  persevering  earnest- 
ness and  zeal  with  which  is  was  opposed  in  a  part  of  our 
country  which  supposed  its  interests  to  be  vitally  affected 
by  the  act  can  not  be  forgotten.  A  want  of  acuteness  in 
discovering  objections  to  a  measure  to  which  they  felt 
the  most  deep-rooted  hostility  will  not  be  imputed  to 
those  who  are  arrayed  in  opposition  to  this.  Yet  they 
never  contested  that  navigation  was  not  a  branch  of  trade, 
and  was  therefore  not  comprehended  to  the  power  to  reg- 
ulate commerce.  They  did  indeed  contest  the  constitu- 
tionality of  the  act,  but  on  a  principle  which  admits  the 
construction  for  which  the  appellant  contends  they  denied 
that  the  particular  law  in  question  was  made  in  pursu- 


44  CONGRESS. 

ance  of  the  Constitution,  not  because  the  power  could  not 
act  directly  on  vessels,  but  because  a  perpetual  embargo 
was  the  anihilation  and  not  the  regulation  of  commerce. 
They  admitted  the  applicability  of  the  words  used  in  the 
Constitution  to  vessels ;  and  that  in  a  case  which  produced 
a  degree  and  an  extent  of  excitement  calculated  to  draw 
forth  every  principle  on  which  legitimate  resistance  could 
be  sustained.  No  example  could  more  strongly  illustrate 
the  universal  understanding  of  the  American  people  on 
the  subject." 

Chief  Justice  Marshall,  with  the  above  entitled  case, 
began  the  first  authoritative  explanation  of  the  term 
"Commerce" ;  since  then  it  has  extended  with  the  growth 
of  the  subject  and  the  invention  of  modern  appliances, 
until  there  is  in  our  mind  a  clear  conception  of  the  ex- 
tension with  the  understanding  of  the  meaning  of  the 
specific  power.  In  this  well-known  case  we  will  find 
that  Mr.  Aaron  Ogden  filed  his  bill,  to  begin  with,  in  the 
court  of  chancery  of  the  State  of  New  York,  against  Mr. 
Thomas  Gibbon,  setting  forth  the  several  acts  of  the  leg- 
islature thereof,  enacted  for  the  purpose  of  securing  to 
Robert  R.  Livingston  and  Robert  Fulton  the  exclusive 
navigation  of  all  waters  within  the  jurisdiction  of  that 
State,  with  boats  moved  by  fire  or  steam,  for  a  term  of 
years  which  has  not  yet  expired,  and  authorizing  the 
chancellor  to  award  an  injunction  restraining  any  person 


CONGRESS.  45 

whatever  from  navigating  those  waters  with  boats  of 
that  description.  The  injunction  having  been  awarded, 
the  answer  of  Gibbons  was  filed,  in  which  he  stated  that 
the  boats  employed  by  him  were  duly  enrolled  and  licensed, 
to  be  employed  in  the  coasting  trade,  under  the  act  of 
Congress,  passed  the  i8th  of  February,  1793.  However, 
the  chancellor  perpetuated  the  injunction,  which  decree 
was  affirmed  finally  by  the  highest  court  of  the  State. 
The  case  was  thereupon  brought  to  the  United  States  Su- 
preme Court  by  writ  of  error.  Chief  Justice  Marshall, 
delivering  the  opinion  of  the  court,  among  many  import- 
ant things,  pointed  out:  "The  subject  to  be  regulated  is 
commerce,  and  our  Constitution  being,  as  was  aptly  said 
at  the  bar,  one  of  enumeration  and  not  of  definition,  to 
ascertain  the  extent  of  the  power,  it  becomes  necessary 
to  settle  the  meaning  of  the  word.  The  counsel  for  the 
appellee  would  limit  it  to  traffic,  to  buying  and  selling,  or 
the  interchange  of  commodities  and  do  not  admit  that  it 
comprehends  navigation.  This  would  restrict  a  general 
term,  applicable  to  many  objects,  to  one  of  its  signifi- 
cations. Commerce  is  undoubtedly  traffic,  but  it  is  some- 
thing more;  it  is  intercourse.  It  describes  the  commer- 
cial intercourse  between  nations  and  parts  of  nations  in 
all  its  branches,  and  is  regulated  by  prescribing  rules  for 
carrying  on  that  intercourse.  If  commerce  does  not  in- 
clude navigation,  the  government  of  the  Union  has  no 


46  CONGRESS. 

direct  power  over  that  subject,  and  can  make  no  law 
prescribing  what  shall  constitute  American  vessels,  or 
requiring  that  they  shall  be  navigated  by  American  sea- 
men. Yet  this  power  has  been  exercised  from  the  com- 
mencement of  the  government,  has  been  exercised  by 
the  consent  of  all,  and  has  been  understood  by  all  to  be 
commercial  regulation.  All  America  understands,  and 
has  uniformly  understood  the  word  'Commerce'  to  com- 
prehend navigation.  It  was  so  understood  and  must  have 
been  so  understood  when  the  Constitution  was  framed. 
The  power  over  commerce,  including  navigation,  was  one 
of  the  primary  objects  for  which  the  people  of  America 
adopted  their  government  and  must  have  been  contem- 
plated in  forming  it.  The  convention  must  have  used  the 
word  in  that  sense  because  all  have  understood  it  in  that 
sense,  and  the  attempt  to  restrict  it  comes  too  late.  The 
subject  to  which  the  power  is  next  applied,  is  to  com- 
merce 'among  the  several  States.'  The  word  'among' 
means  intermingled  with.  A  thing  which  is  among  others 
is  intermingled  with  them.  Commerce  among  the  States 
can  not  stop  at  the  external  boundary  line  of  each  State, 
but  may  be  introduced  into  the  interior.  The  power  of 
Congress,  then,  comprehended  navigation,  w'ithin  the 
limit  of  every  State  in  the  Union  so  far  as  that  naviga- 
tion may  be  in  any  manner  connected  with  'commerce 
with  foreign  nations,  or  among  several  States,  or  with  the 


CONGRESS.  47 

Indian  tribes.'  It  may,  of  consequence,  pass  the  juris- 
dictional line  of  New  York,  and  act  upon  the  very  waters 
to  which  the  prohibition  now  under  consideration  applies. 
In  every  such  case  the  act  of  Congress,  or  treaty,  is 
supreme  and  the  law  of  the  State,  though  enacted  in  the 
exercise  of  powers  not  controverted,  must  yield  to  it." ' 

In  connection  with  regulations  affecting  the  navigation 
of  public  waters,  the  State  legislature  of  Alabama  en- 
acted a  law  commanding  the  owners  of  steamboats  nav- 
igating the  water  of  the  State  to  file  a  statement  with  the 
probate  judge  of  Mobile  County  setting  forth  the  names, 
residence,  or  interests  of  the  owners.  This  was  held  in- 
valid as  conflicting  with  vessels  enrolled  and  licensed  to 
trade  under  the  law  of  Congress.*  It  was  also  held  in 
the  case  of  Moran  v.  New  Orleans  that  a  statute  im- 
posing a  license  tax  not  on  the  vessels  as  property  but  on 
the  business  of  owning  and  operating  towboats  between 
New  Orleans  and  the  Gulf  of  Mexico,  as  invalid,  as  it 
puts  a  price  on  the  privilege  of  navigating  the  Missis- 
sippi.' Closely  following  the  decision  of  Moran  v.  New 
Orleans,  we  will  notice  the  application  of  its  principles 
to  the  understanding  of  a  step  further,  when  the  Su- 
preme Court  pointed  out  that  a  vesesl  which  is  going 
between  the  ports  of  the  same  State,  passes  upon  the  high 

'  Gibbon  v.  Ogden,  9  Wheat,  i. 
'  Simet  V.  Davenport,  22  How.  227. 
'ill  U.  S.  69. 


48  CONGRESS. 

sea,  is  subject  to  congressional  regulation  and  is  not  en- 
gaged in  purely  domestic  commerce,'' 

Sec.  13.  Now  there  can  be  no  dispute  as  to  the 
paramount  authority  of  the  national  legislative  power 
to  regulate  interstate  and  international  commerce.  When, 
however,  the  police  power  of  the  State  comes  in  full 
view,  clearly  distinguishable  from  the  regulation  of  the 
commerce.  State  power  is  paramount  within  a  State  un- 
til it  comes  in  conflict  with  an  act  of  Congress.  The 
State  of  Maryland  passed  an  act  requiring  importers  of 
goods  to  take  out  a  license  and  pay  license  fee,  but  this 
is  held  to  be  an  encroachment  upon  the  powers  of  Con- 
gress. In  this  case  the  Supreme  Court,  rendering  the  de- 
cision, said :  "The  oppressed  and  degraded  state  of  com- 
merce previous  to  the  adoption  of  the  Constitution  can 
scarcely  be  forgotten.  It  was  regulated  by  foreign  na- 
tions with  a  single  view  to  their  own  interests,  and  our 
disunited  efforts  to  counteract  their  restrictions  were  ren- 
dered impotent  by  want  of  combination.  It  is  not,  there- 
fore, a  matter  of  surprise,  that  the  grant  should  be  as 
extensive  as  the  mischief,  and  should  comprehend  all 
foreign  commerce  and  all  commerce  among  the  States. 
To  construe  the  power  so  as  to  impair  its  efficiency  would 
tend  to  defeat  an  object  in  the  attainment  of  which  the 

'  Lord  V.  Steamship  Co.,  102  U.  S.  561 ;  Pacific  C.  S.  S.  Co.  v. 
Com'rs,   18  Fed.  Rep.   10. 


^$^% 


%©^ 


SOME     MEMBERS    OF    THE     HOUSE     OF     REPRESENTATIVES,    FIFTY-NINTH     CONGRESS 


Some  Members  of  the  House  of  Representatives  of  the  United 
States,  59th  Congress,  1st  Session 


1.  Charles  Frederick   Scott,  the  United   States   Representative   from   Kansas,   was  the 

President  of  the  State  Editorial  Association  and  is  a  graduate  of  the  I'niversity 
of  Kansas. 

2.  Thctus    Willrette    Sims,    the    United    States    Representative    from    Tennessee,    was 

Perry  County  Superintendent  of  Puhlic  Instruction,  and  is  a  graduate  of  the 
Cumherland  University  of  Lehanon. 

3.  Daniel  Larned  Davis  Granger,  the  United  States  Representative  from  Rhode  Island, 

was  Mayor  of  the  City  of  Providence,  and  is  a  graduate  of  Brown  University. 

4.  T.  L.  B.  Burnett,  the  United  States  Representative  from  Alahama,  was  a  member  of 

the  State  Legislature  and  Senate,  and  was  educated  in  the  Vanderliilt  Uni- 
versity. 

5.  James  McLachlan,  the  United  States  Representative  from  California,  was  a  Districi 

Attorney  of  Los  Angeles  County  in  the  State,  and  is  a  graduate  of  the  Hamil- 
ton College. 

6.  John  W.  Gaines,  the  United  States  Representative  from  Tennessee,  is  a  prominent 

lawyer  in  the   State. 

7.  Joseph   G.   Cannon,   Speaker  of  the   House   of  Representatives,   from   Illinois,   is   a 

prominent  lawyer  in  the   State. 

8.  James   Harding  Southard,  the  United   States  Representative  from   Ohio,  was  Dis- 

trict Attorney  of  the  Toledo  County,  and  is  a  graduate  of  the  Cornell  Uni- 
versity. 

9.  George  Washington  Cromer,  the  United   States  Representative  from   Indiana,  was 

Mayor  and  Prosecuting  Attorney  in  the  State,  and  is  a  graduate  of  the  State 
LTniversity   of   Indiana,    Bloomington,    Indiana. 

10.  Charles    Henry   Grosvenor.   the   United    States    Representative    from    Ohio,    was    a 

Chairman  of  the  Executive  Committee  of  the  State  Bar  Association,  and  also 
was  a  Speaker  of  the  State  House  of  Representatives. 

11.  Henry   M.   Goldfogle,   the  United   States   Representative   from   New   York,   was   a 

Judge  of  the  Municipal  Court  of  New  York,  and  also  one  of  the  advisory 
committee   of  the   educational   alliance. 

12.  Bourke   W.    Cochran,   the   L^nited    States   Representative    from    New   York,   was   a 

member  of  the  committee  to  revise  the  Judiciary  article  of  the  Constitution  of 
New   York. 

13.  Champ  Clark,  the  United   States  Representative  from   Missouri,  was  Chairman  of 

the  National  Democratic  Convention  at  St.  Louis.  He  was  educated  in  the 
Kentucky  University,  Bethany  College,  and  the  Cincinnatti  Law  School.  He 
also  was  President  of  Marshall  College  of  West  Virginia. 

14.  James   G.    McGuire,   ex-United   States   Representative   from   California,   was   Judge 

of  the  Superior  Court  of  the  State.  He  was  also  a  delegate  to  the  National 
Democratic  Convention. 

15.  Newton   Whiting  Gilbert,   the   United   States   Renresentative   from   Indiana,   was   a 

State  Senator,  and  is  a  graduate  of  the  Ohio  State  University. 

16.  Francis  W.  Cushman.  the  United  States  Representative  from  the   State  of  Wash- 

ington, is  a  prominent  lawyer  in  Tacoma. 

17.  Charles    R.   Thomas,   the   United   State   Representative   from   North    Carolina,   was 

Craven  County  Attorney,  and  a  member  of  the  State  Legislature.  He  is  a 
graduate  of  the  Emerson  Institute,  Washington,  D.  C,  and  also  the  LTni- 
versity of  North  Carolina. 

18.  William    Orlando    Smith,    the    United    States    Representative    from    Penns.\lvania, 

was  a  Representative  in  the  general  Assembly  of  his  State,  and  was  educated 
in  the  public  schools  in  the  State. 


CONGRESS.  51 

American  public  took  and  justly  took  that  strong  inter- 
est which  arose  from  a  full  conviction  of  its  necessity." 

^Vhat  would  be  the  language  of  a  foreign  government 
should  it  be  informed  that  its  merchants,  after  importing 
according  to  law,  were  fobidden  to  sell  the  merchandise 
imported?  What  answer  would  the  United  States  give 
to  the  complaints  and  just  reproaches  to  which  such  ex- 
traordinary circumstances  would  expose  them  ?  No  apol- 
ogy could  be  received  or  even  offered.  Such  a  state  of 
things  would  break  up  commerce.  It  will  not  meet  this 
argument  to  say  that  this  state  of  things  will  never  be 
produced;  that  the  good  sense  of  the  State  is  sufficient 
security  against  it.  The  Constitution  has  not  confided  this 
subject  to  that  good  sense.  It  is  placed  elsewhere.  The 
question  is.  Where  does  the  power  reside,  not  how  far 
will  it  be  probably  abused?  The  power  claimed  by  the 
State  is,  in  its  nature,  in  conflict  with  that  given  to  Con- 
gress, and  the  greater  or  less  extent  in  which  it  may  be 
exercised  does  not  enter  into  the  inquiry  concerning  its 
existence.^ 

It  is  likewise  held  important  when  a  statute  imposed 
a  license  tax  upon  persons  dealing  in  goods  not  produced 
in  the  State,  while  imposing  no  corresponding  tax  upon 
those  dealing  in  goods  which  are  the  products  of  the 
State.'    At  the  same  time,  although  all  the  citizens  of  the 

^  Brown  v.  Maryland,  12  Wheat.  419,  7  Curtis  262. 
'Welton  V.  Missouri,  91  U.  S.  275. 


52  CONGRESS. 

State  of  Tennessee  were  subjected  to  the  same  law  im- 
posing a  tax  upon  all  persons  selling  goods  by  sample, 
it  was  held  void  to  apply  the  law  to  a  salesman  from  an 
Ohio  house  soliciting  orders  for  goods  to  be  sent  from 
the  State  of  Ohio.' 

The  acts  of  the  State  of  New  York  requiring  the  mas- 
ter of  a  vessel  bringing  passengers  from  other  countries 
and  landing  them  within  the  limits,  to  pay  to  the  State  a 
certain  sum  per  head  for  every  such  passenger,  or  impos- 
ing on  the  shipowner  an  alternative  payment  of  a  small 
sum  of  money  for  each  passenger  landed,  were  held 
void.'  Neither  can  the  State  of  California  impose  a 
stamp  duty  upon  the  bill  of  lading  of  all  goods  sent  out 
of  the  State,  nor  can  the  State  of  Indiana  forbid  the  con- 
duction from  the  State  in  pipes  of  natural  gas.*  Here 
again  we  emphasize  that  the  power  to  regulate  commerce 
among  the  States  is  a  unit  having  been  vested  exclu- 
sively in  Congress,  and  can  not  be  encroached  upon  by 
the  States.  But  where,  in  relation  to  the  subject  matter, 
different  rules  may  be  suitable  for  different  localities,  the 
States  may  exercise  powers  which,  though  they  may  be 
said  to  partake  of  the  nature  of  the  power  granted  to  the 

^  Robin  V.  Shelby  Taxing  Hist.,  120  U.  S.  489'.  Asher  v.  Texas, 
128  U.  S.  129. 

*  Passenger  cases,  7  How.  283.  Henderson  v.  Mayer,  92  U.  S.  259. 
New  York  v.  Miln.,  11  Ret.  103. 

^  Almy  V.  California,  24  How.  169.  State  v.  Indiana,  Ohio,  Gas 
Co.,  120  Ind.  575.  Kid.  v.  Pearson,  128  U.  S.  i.  Phila.  S.  Co.  v. 
Penn.,  122  U.  S.  326. 


CONGRESS.  53 

general  government,  are  not  strictly  such,  but  are  simply 
local  powers  which  have  full  operation  until  or  unless 
circumscribed  by  the  action  of  Congress  in  effectuation 
of  the  general  power. 

Chief  Justice  Fuller,  in  the  case  of  Leisy  v.  Hardin, 
delivering  the  opinion  of  the  Supreme  Court  upon  the 
point,  said: 

"And  while  by  virtue  of  the  jurisdiction  over  persons 
and  property  within  its  limits,  a  State  may  provide  for  the 
security  of  the  lives,  limbs,  health,  and  comfort  of  persons 
and  the  protection  of  property  so  situated,  yet  a  subject 
matter  which  has  been  confided  exclusively  to  Congress 
by  the  Constitution  is  not  within  the  jurisdiction  of  the 
police  power  of  the  State,  unless  placed  there  by  congres- 
sional action.'"  So  that  when  Congress  circumscribed 
by  an  act.  Justice  White,  in  a  later  case,  had  emphasized 
the  State  power,  in  rendering  opinion  of  the  court :  "The 
Bowman  case  was  decided  in  1888,  the  opinion  in  Leisy 
v.  Hardin  was  announced  in  April,  1890,  the  act  under 
consideration  was  approved  August  8,  1890.  Consider- 
ing these  dates,  it  is  reasonable  to  infer  that  the  provis- 
ions of  the  act  were  intended  by  Congress  to  cause  the 
legislative  authority  of  the  respective  States  to  attach  to 
intoxicating  liquors  coming  into  the  States  by  an  inter- 

^  Leisy  v.  Hardin,  135  U.  S.  100.  Henderson  v.  Mayor  of  N.  Y., 
92  U.  S.  259.  Railroad  Co.  v.  Husen,  95  U.  S.  465.  Welling  v. 
Michigan,  116  U.  S.  446.  Robbjn  v.  Shelby  Taxing  Dest.,  120  U.  S. 
489. 


54  CONGRESS. 

State  shipment,  only  after  the  consummation  of  the  ship- 
ment, but  before  the  sale  of  the  merchandise,  that  is,  that 
the  one  receiving  merchandise  of  the  character  named 
should,  whilst  retaining  the  full  right  to  use  the  same,  no 
longer  enjoy  the  right  to  sell  free  from  the  restrictions  as 
to  sale  created  by  State  legislation,  a  right  which  the  de- 
cision in  Leisy  v.  Hardin  had  just  previously  declared 
to  exist"' 

Sec.  14.  Among  the  most  important  of  the  powers 
conferred  upon  Congress  is  that  "to  establish  a  uniform 
rule  of  naturalization." 

Naturalization  is  the  adoption  into  the  national  family 
and  investing  the  rights,  privileges  and  immunities  of 
citizenship  of  persons  not  born  to  the  citizenship.  This 
process  involves  the  fundamental  principle  underlying 
American  understanding  of  expatriation,  the  understand- 
ing of  the  most  glorious  legal  contemplation  of  the  rights 
of  man. 

Along  the  American  revolutionary  periods  so  called 
American  fathers  insisted  upon  and  made  all  the  world 
understand  the  principle  of  expatriation,  that  is,  the  right 
of  man  to  change  his  habitation  and  change  his  allegi- 
ance until  it  may  be  said  to  be  practically  universal  and 
under  it  the  subjects  of  all  civilized  nations  have  exercised 
and  been  protected  in  the  rights.' 

'  Rhose  V.  Iowa,  170  U.  S.  412. 

"Inglis  V.  Trustees  of  Sailors  Snug  Harbor,  3  Pet.  121. 


CONGRESS.  55 

What  we  have  to  consider  is  the  particular  power  of 
Congress  as  we  understand  it  with  regard  to  estabhshing 
a  uniform  rule  of  "naturalization."  Under  the  Consti- 
tution Congress  is  given  exclusive  jurisdiction  on  the  sub- 
ject of  naturalization.  It  is  plain,  when  Congress  has 
prescribed  a  rule,  its  power  is  exclusive,  and  any  regu- 
lation by  any  one  State  would  break  the  rule  of  uniform- 
ity. Therefore,  by  conforming  the  act  of  Congress  the 
complete  citizenship  can  be  obtained.  It  is  true  that  the 
several  States  in  the  Union  confer  to  aliens,  after  de- 
claring their  intention  to  become  citizens,  the  high  privi- 
leges of  the  election  franchise.  Nevertheless,  let  all  of 
us  understand  that  a  State  without  power  of  naturaliza- 
tion can  not  confer  aliens  that  privilege  which  the  Con- 
stitution guarantees,  namely :  **The  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citi- 
zens in  the  United  States." 

Aliens  may  be  able  to  secure  the  complete  citizenship 
according  to  the  acts  of  Congress  which  have  been  enacted 
from  time  to  time.  He  may  obtain  it  through  birth,  the 
general  provision  of  naturalization  or  by  virtue  of  being 
one  of  the  people  absolved  by  treaty. 

Sec.  15.  To  obtain  citizenship  through  birth  in  point 
of  time  and  importance  is  well  expressed  by  Justice  Gray 
in  the  case  of  Chinaman  Wong  Kim  Ark.  The  question 
submitted  to  the  Supreme  Court  for  decision  in  the  case 


56  CONGRESS. 

was :  whether  a  child  born  in  the  United  States  of  parents 
of  Chinese  descent  who  at  the  time  of  his  birth  are  sub- 
jects of  the  Emperor  of  China,  but  have  a  permanent 
domicile  and  residence  in  the  United  States,  and  are  there 
carrying  on  business,  and  are  not  employed  in  any  diplo- 
matic or  official  capacity  under  the  Emperor  of  China, 
becomes  at  the  time  of  his  birth  a  citizen  of  the  United 
States.  To  which  the  United  States  Supreme  Court  was 
of  the  opinion  that  the  question  must  be  answered  in  the 
affirmative.  Justice  Gray,  in  rendering  this  important 
opinion  of  the  court,  said :  "In  this  or  in  other  respects, 
it  must  be  interpreted  in  the  light  of  the  common  law,  the 
principles  and  history  of  which  were  familiarly  known  to 
the  framers  of  the  Constitution." 

The  fundamental  principle  of  the  common  law,  with 
regard  to  the  English  nationality,  was  birth  within  the 
allegiance,  also  called  "ligealty,"  "obedience,"  "faith,"  or 
"power,"  of  the  King.  The  principle  embraced  all  persons 
born  within  the  King's  allegiance  and  subject  to  his  pro- 
tection. Such  allegiance  and  protection  were  mutual,  as 
expressed  in  the  maxim,  Protectio  trabit  suhjectionum, 
et  subjectio  protectionem,  and  were  restricted  to  natural 
born  subjects  and  naturalized  subjects,  or  to  those  who 
had  taken  an  oath  of  allegiance,  but  were  predicable  of 
aliens  in  amity,  so  long  as  they  were  within  the  king- 
dom.    Children  born  in  England,  of  such  aliens,  were 


CONGRESS.  57 

therefore  natural  born  subjects,  but  the  children  born 
within  the  realm  of  foreign  ambassadors,  or  the  children 
of  alien  enemies,  born  during  and  within  their  hostile 
occupation  of  the  part  of  the  King's  dominions,  were  not 
natural  born  subjects  because  not  born  within  the  alleg- 
iance, the  obedience  or  the  power,  or,  as  would  be  said 
at  this  day,  within  the  jurisdiction  of  the  King/ 

Sec.  1 6.  Among  the  provisions  of  naturalization  the 
most  discussed  one  seems  to  be  that  of  Section  2169, 
which  says :  "The  provisions  of  this  title  shall  apply  to 
aliens  of  African  nativity  and  to  persons  of  African  de- 
scent." The  first  point  of  importance  in  construction  of 
this  section  is  considered  in  1878,  also  by  the  Chinese 
case  in  re  Ah  Yup.  When  the  case  of  this  Chinese  was 
decided,  the  Chinese  question  was  flagrant  on  the  Pacific 
slope,  and  Judge  Sawyer  seemed  to  think,  predicating 
his  conclusion  upon  the  debate  in  Congress,  that  the  pur- 
pose of  the  amendment  extending  the  right  of  naturaliza- 
tion to  Africans  and  persons  of  African  descent  was  to 
exclude  Chinese  from  the  benefit  of  naturalization. 

To  quote  his  own  language :  "Many  other  Senators 
spoke  pro  and  con  on  the  question,  this  being  the  point 
of  the  contest,  and  these  extracts  being  fair  examples  of 
the  opposing  opinions  ...  It  was  finally  defeated 
(amendment  to  strike  the  word  Svhite'  from  the  naturali- 

'U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649. 


58  CONGRESS. 

zation  laws),  and  the  amendment  cited,  extending  the 
right  of  naturalization  to  the  African  ovAy  adopted.  It 
is  clear  from  this  proceeding  that  Congress  retained  the 
word  'white'  in  the  naturalization  laws  for  the  sole  pur- 
pose of  excluding  the  Chinese  from  the  right  of  natural- 
ization .  .  ."* 

Later  in  1897,  when  Ricardo  Rodriguez,  a  citizen  of 
Mexico,  filed  an  application  in  due  form,  by  which  he 
sought  to  become  a  naturalized  citizen  of  the  United 
States.  The  United  States  District  Court,  West- 
ern District  of  Texas,  concluded  that  citizens  of 
Mexico  were  eligible  to  American  citizenship,  and 
may  be  individually  naturalized  by  complying  with 
the  provisions  of  American  laws.  Judge  Maxey, 
in  rendering  the  opinion  of  the  court,  said  a  most 
judicious  and  far-reaching  sequence.  The  learned  judge 
has  in  his  opinion  clearly  drawn  the  line  between  the  strict 
letter  of  the  law  and  the  meaning  and  extent  of  the  stat- 
ute. According  to  his  own  words :  "The  opinion  of 
Judge  Sawyer  is  by  no  means  decisive  of  the  present 
question,  as  his  language  may  well  convey  the  meaning 
that  the  amendment  of  the  naturalization  statutes  re- 
ferred to  by  him  was  intended  solely  as  a  prohibition 
against  the  naturalization  of  members  of  the  Mongolian 
race.  The  naturalization  of  the  Chinese  is,  however,  no 
^  In  re  Ah  Yup,  155  Sawy. ;  Fed.  Cas.  223. 


SOME    MEMBERS     OF    THE     UNITED     STATES     SENATE,     FIFTY-NINTH     CONGRESS 


Some  Members  of  the  United  States  Senate  in  the  59th 
Congress,  1  st  Session 


1.  George   Clement    Perkins,   the   United    States    Senatoi;   from    California,    was    Gov- 

ernor of  the  State.  He  is  successor  to  the  late  Lcland  Stanford  in  the  United 
States  Senate. 

2.  James   Alexander   Hemenvvay,   the   United    States    Senator   from   Indiana,   was   the 

United  States  Representative  from  the  State.  He  was  prosecuting  attorney  of 
the  Second  Judicial  Court  of  Indiana  when  George  L.  Reinharde,  present 
dean  of  the  Indiana  University,  was  Judge,  and  succeeded  C.  W.  Fairbanks, 
the  Vice-President  of  the  United  States. 

3.  Joseph   Weldon   Bailey,  the  United   States   Senator  from  Texas,   was   the  nominee 

for  the  Speaker  of  the  House  of  Representatives  of  the  United  States. 

4.  William    Boyd    Allison,    the    United    States    Senator    from    Iowa,    was    the    United 

States  Representative  from  the  State,  and  is  a  graduate  of  the  Western 
Reserve  University. 

5.  Winthrop    Murray    Crane,    the    United    States    Senator    from    Massachusetts,    was 

Governor  of  the  State.  He  was  educated  at  Williston  Seminary,  Easthampton. 

6.  Charles  W.  Fairbanks,  the  Vice-President  of  the   ['iiited  States  and  the  President 

of  the  Senate,  was  the  United  States  Senator  from  Indiana,  and  a  graduate 
of  the  Ohio  Wesleyan  University. 

7.  John  Kean,  the  United  States  Senator  from  New  Jersey,  was  Representative  from 

the  State,  and  a  graduate  of  Columbia  and  Yale  Universities. 

8.  Robert  Marion  La  Follette.  the  United  States  Senator  from  Wisconsin,  was  thrice 

Governor  of  the  State,  and  is  a  graduate  of  Wisconsin  University. 

9.  Elmer  Jacob   Burkett,  the  United   States   Senator   from   Nebraska,   was   Represen- 

tative from  the  State,  and  is  a  graduate  of  Tailor  College  and  the  University 
of  Nebraska. 

10.  Reed    Smoot,   the   United    States    Senator   from   Utah,   is   a   graduate   of   Brigham 

Young  Academy. 

11.  Henry  Cabot  Lodge,  the  United  States  Senator  from  Massachusetts,  was  a  mem- 

ber of  the  Alaskan  Boundary  Commission  and  the  United  States  Represen- 
tative from  his  State,  and  is  an  alumnus  of  Harvard,  Yale  and  Clark  Uni- 
versities and  also  of  Williams  College. 

12.  Shelby  M.  CuUom.  the  United  States  Senator  from  Illinois,  was  Governor  of  the 

State  and  a  United  States  Representative  from  the  State. 

13.  Philander    Chase    Knox,   the   United    States    Senator    from    Pennsylvania,   was   the 

Lhiited  States  Assistant  District  Attorney,  President  of  the  State  Bar  Asso- 
ciation, and  he  was  also  Attorney  General  in  the  McKinley  Cabinet  and  also 
in  the  Roosevelt  Cabinet.  He  was  educated  at  the  Mount  Union  College 
in  Ohio. 

14.  Isador  Rayner,  the  United  States   Senator  from   Maryland,  was  Attorney  General 

of  the  State,  and  was  educated  at  the  Maryland  and  Virginia  Universities. 

15.  John   Warwick   Daniel,   the   United   States    Senator   from   Virginia,   was   a   LTnited 

States  Representative  from  his  State.  He  was  educated  at  Lynchburg  College 
and  the  University  of  Virginia  and  is  an  alumnus  of  Washington  and  Lee 
and  Michigan  Universities. 

16.  F"rancis    Griffith    Newlands,    the    United    States    Senator    from    Nevada,    was    vice 

chairman  of  the  National  Silver  Committee,  and  also  the  United  States  Rep 
resentative.  He  was  educated  in  Yale  University,  and  Columbian  (now  George 
Washington)    University  of  Washington,  D.  C. 


CONGRESS.  6l 

longer  an  open  question,  as  Section  14,  of  the  Act  of 
May  6,  1882,  expressly  provides,  "that  hereafter  no  State 
court  or  court  of  the  United  States  shall  admit  Chinese 
to  citizenship;  and  all  laws  in  conflict  with  this  act  are 
hereby  repealed. 

"If  Chinese  were  denied  the  right  to  become  naturalized 
citizens  under  laws  existing  when  in  re  Ah  Yup  was  de- 
cided, why  did  Congress  subsequently  enact  the  prohibi- 
tory statute  above  quoted  ?  Indeed,  it  is  a  debatable  ques- 
tion whether  the  term  'free  white  person,'  as  used  in  the 
original  act  of  1790,  was  not  employed  for  the  sole  pur- 
pose of  withholding  the  right  of  citizenship  from  the 
black  or  African  race  and  the  Indians  then  inhabiting 
this  country.  But  it  is  not  necessary  to  enter  upon  a  dis- 
cussion of  that  question;  nor  is  it  deemed  material  to 
inquire  to  what  race  ethnological  writers  would  assign 
the  present  applicant.  If  the  strict  scientific  classification 
of  the  anthropologist  should  be  adopted,  he  would  prob- 
ably not  be  classified  as  white.  It  is  certain  that  he  is 
not  an  African,  nor  a  person  of  African  descent.  Ac- 
cording to  his  own  statement  he  is  a  'pure-blooded  Mexi- 
can,' bearing  no  relation  to  the  Aztecs  or  original  races 
of  Mexico.  Being,  then  a  citizen  of  Mexico,  may  he  be 
naturalized  according  to  the  law  of  Congress?  If  de- 
barred by  the  strict  letter  of  the  law  from  receiving  letters 
of  citizenship,  is  he  embraced  within  the  meaning  and 


62  CONGRESS. 

extent  of  the  law,  his  appHcation  should  be  granted  not- 
withstanding the  letter  of  the  statute  may  be  against 
him."* 

The  instances  of  collective  naturalization  by  treaty 
or  by  statute  are  numerous.  By  the  treaty  of  Sep- 
tember 27,  1830,  such  tribes  as  the  Choctaws  were  made 
citizens  of  the  United  States.  All  white  person  or  per- 
sons of  European  descent  who  were  born  in  any  of  the 
colonies  or  resided  or  had  been  adopted  there  before 
1776  were  by  declaration  invested  with  the  privileges  of 
citizenship.  Under  the  second  article  of  Jay's  treaty,* 
British  subjects  who  resided  at  Detroit  before  and  at  the 
time  of  the  evacuation  of  the  territory  of  Michigan,  and 
who  continued  to  reside  there  afterwards  without  at  any 
time  prior  to  the  expiration  of  one  year  from  such 
evacuation  declaring  their  intention  of  becoming  British 
subjects,  become  ipso  facto  to  all  intent  and  purpose 
American  citizens.' 

By  article  three  of  the  treaty  of  Paris  and  8  Stat.  200, 
202,  which  was  enacted  in  pursuance  to  the  treaty,  "the 
inhabitants  of  the  ceded  territory"  admitted  to  citizen- 
ship. In  the  case  of  Dred  Scott  v.  Sanford,  Mr.  Justice 
Catron  said:  "The  settled  doctrine  in  the  State  courts 
of  Louisiana  is,  the  Orleans  Territory,  after  the  treaty  of 

'  In  re  Rodriguez,  31  Federal  Reporter,  337.    In  re  Saito,  21  Fed. 
126. 
'8  Stat.  116,  117. 
^143  U.   S.   135. 


CONGRESS.  63 

1803  was  made,  and  before  Louisiana  was  admitted  into 
the  Union,  any  one  being  an  inhabitant  at  the  time  of  the 
admission  became  a  citizen  of  the  United  States  by  that 
act;  that  he  was  one  of  the  inhabitants  contemplated  by 
the  third  article  of  the  treaty,  which  referred  to  all  the 
inhabitants  embraced  within  the  new  State  on  its  admis- 
sion.    That  this  is  true  construction  I  have  no  doubt."  ^ 
This   point   was   also   emphasized   in   the   Debois   case. 
Debois,  of  French  birth,  applied  for  a  license  to  practice 
as  a  counsellor  and  attorney  at  law  in  the  Supreme  Court 
of  Louisiana,  and  by  one  of  the  rules  of  the  court  the 
applicant  could  not  be  admitted  unless  he  was  a  citizen 
of  the  United  States.     Debois  conceded  that  he  had  no 
claims  to  citizenship  by  birth  or  by  naturalization  under 
the  act  of  Congress  to  establish  a  uniform  rule  on  that 
subject,  but  he  contended  that  there  was  a  third  mode  of 
acquiring  citizenship  of  the  United  States,  namely,  the 
admission  into  the  Union  of  a  State  of  which  he  was  a 
citizen.     After  an  able  discussion  of  the  subject.  Judge 
Martin  concluded  that  the  applicant  must  be  considered  a 
citizen  of  the  United  States.*     There  is,  however,  one 
other  mode.    That  is,  if  any  alien  should  die  without  hav- 
ing completed  his  naturalization  his  widow  and  children 
should  be  considered   citizens.     This   point   was   made 
clear  in  the  famous  Governor-elect  Boyd's  case  and  in 

*  Dred  Scott  v.  Sanford,  19  How.  395.  525- 
'  Debois  case,  2  Martin   185. 


64  CONGRESS. 

which  the  distinguished  jurist,  Chief  Justice  Fuller's 
opinion  is  authority/ 

Before  concluding  the  applications  and  its  judicial 
construction  of  the  acts  of  Congress,  and  the  congres- 
sional power  itself,  we  are  brought  to  confront  the  land- 
mark which  we  must  always  keep  in  view  with  regard 
to  the  question  of  naturalization.  In  the  language  of 
Chief  Justice  Marshall :  "The  jurisdiction  of  the  nation 
within  its  own  territory  is  necessarily  conclusive  and 
absolute.  It  is  susceptible  of  no  limitation  not  imposed 
by  itself.  Any  restriction  upon  it  deriving  validity  from 
an  internal  source,  would  imply  a  diminution  of  its 
sovereignty  to  the  same  extent  in  that  power  which  could 
impose  such  restrictions.  All  exceptions,  therefore,  of 
the  full  and  complete  power  of  a  nation  within  its  own 
territories,  must  be  traced  up  to  the  nation  itself.  They 
can  flow  upon  no  other  legitimate  source." ' 

Inasmuch  as  naturalization  is  the  act  by  which  the 
member  who  legally  departs  his  own  sovereignty  requires 
membership  in  the  sovereignty  to  which  he  migrated,  the 
simple  act  of  emigration  is  no  transfer  of  citizenship. 
This  is  a  well  understood  proposition.  It  is  also  well 
understood  that  to  the  act  of  emigration  must  be  added 
the  act  of  naturalization  in  accordance  with  the  laws  of  the 
sovereignty  to  which  the  emigrant  has  emigrated.    These 

'  Boyd  V.  Thayer,  143  U.  S.  I35- 
'The  Exchange,  7  Cranch  116,  136. 


CONGRESS.  65 

two  acts  combined  work  the  transfer  of  citizenship.  In 
discussing  the  expatriation,  emigration  and  naturaHza- 
tion,  the  recognition  of  the  right  of  autonomy  or  regula- 
tion of  internal  affairs  of  particular  sovereignties  must  be 
the  first  principles.  The  Constitution  of  the  United 
States  has  no  extra-territorial  effect,  no  more  than  have 
the  laws  of  other  countries. 

"If,  therefore,  the  government  of  the  United  States." 
in  the  language  of  Chief  Justice  Fuller  in  rendering  opin- 
ion of  the  court  in  the  case  of  Chinese  exclusion,  "through 
its  legislation  department  considers  the  presence  of  for- 
eigners of  a  different  race  in  this  country,  who  will  not 
assimilate  with  us,  to  be  dangerous  to  its  peace  and  se- 
curity, their  exclusion  should  not  be  stayed  at  the  time 
there  were  no  actual  hostilities  with  the  nation  of  which 
the  foreigners  are  subjects.  The  existence  of  war  would 
render  the  necessity  of  the  proceeding  only  more  obvious 
and  pressing.  The  same  necessity,  in  a  less  pressing  de- 
gree, may  arise  when  war  does  not  exist,  and  the  same 
authority  which  adjudges  the  necessity  in  one  case  must 
also  determine  it  in  the  other.  In  both  cases  its  determi- 
nation is  conclusive  upon  the  judiciary." 

Sec.  17.  Congress  shall  also  have  power  to  establish 
"uniform  laws  on  the  subject  of  bankruptcy  throughout 
the  United  States." 

Controversies  involving  the  constitutional  effects  and 


66  CONGRESS. 

Operations  of  State  insolvent  laws  have  frequently  been 
under  consideration  in  the  Federal  tribunal,  and  unless 
it  be  claimed  that  constitutional  questions  must  always 
remain  open,  it  must  be  conceded,  we  think,  that  there  are 
some  things  connected  with  the  general  subject  that 
ought  to  be  regarded  as  settled  and  forever  closed.  State 
authorities  have  power  to  pass  a  bankrupt  or  insolvent 
law,  provided  there  be  no  act  of  Congress  in  force  es- 
tablishing a  uniform  system  of  bankruptcy  conflicting  with 
such  laws,  and  provided  the  law  itself  be  so  framed  that 
it  does  not  impair  the  obligation  of  contract.^ 

The  American  understanding  of  this  specific  power  of 
Congress  was  clearly  made  known  and  the  principles  for 
such  understanding  were  pointed  out  time  and  again. 
Take  the  case  of  Ogden  v.  Saunders  and  we  will  see  the 
three  important  rules.  First,  the  Supreme  Court  of  the 
United  States  held  that  the  power  of  Congress  to  estab- 
lish uniform  laws  on  the  subject  of  bankruptcies  through- 
out the  United  States  did  not  exclude  the  right  of  the 
States  to  legislate  on  the  same  subject  except  when  the 
power  has  actually  been  exercised  by  Congress,  and  the 
State  laws  conflicted  with  those  of  Congress.  Secondly, 
that  a  bankrupt  or  insolvency  law  of  any  State  which  dis- 
charges both  the  person  of  the  debt  and  his  future  acquisi- 
tions of  property,  was  not  a  law  impairing  the  obligation 
*  Sturges  V.  Crowninshield,  4  Wheat.  122. 


CONGRESS.  67 

of  contract  so  far  as  respects  debts  contracted  subsequent 
to  the  passage  of  such  laws.  Thirdly,  that  a  certificate 
of  discharge  under  such  a  law  can  not  be  pledged  in  bar 
of  an  action  brought  by  a  citizen  of  another  State  in  the 
court  of  the  United  States,  or  of  any  other  State  than 
that  where  the  discharge  is  obtained.' 

Among  many  cases  directly  bearing  upon  the  princi- 
ples, the  case  of  Baldwin  v.  Hale  is  conspicuous.  Bald- 
win executed  at  Boston  in  the  State  of  Massachusetts, 
his  promissory  note  for  two  thousand  dollars,  payable 
there  to  his  own  order  and  subsequently  indorsed  such 
note  to  Hale.  Consequently,  Baldwin  had  a  certificate 
of  discharge  in  a  proceeding  in  the  court  of  Massachu- 
setts, which  certificate  embraced  by  its  terms  all  con- 
tracts to  be  performed  within  the  State  of  Massachusetts ; 
but  in  this  insolvency  proceeding  Hale  did  not  prove  his 
debt  or  take  any  part.  At  the  time  of  the  execution  of 
the  note  and  commencement  of  the  proceeding,  Hale  was 
a  citizen  of  Vermont  and  Baldwin  of  Massachusetts. 
Baldwin  pleaded  on  the  certificate  of  the  State  insolvency 
court  as  the  bar  to  action,  but  the  United  States  Circuit 
Court  in  the  district  of  Massachusetts  did  not  sustain 
Baldwin's  contentions.  Hence,  the  writ  of  error  for  the 
determination  of  the  United  States  Supreme  Court. 
Justice  Clifford  who  rendered  the  opinion  of  the  court, 
*  Ogden  V.   Saunders,    12   Wheat.   213. 


68  CONGRESS. 

concluded  that  insolvent  laws  of  one  State  can  not  dis- 
charge the  contracts  of  citizens  of  other  States,  because 
they  have  no  extra-territorial  operation  and  consequently 
the  tribunal  sitting  under  them,  unless  in  cases  where  a 
citizen  of  such  other  State  voluntarily  becomes  a  party 
to  the  proceeding,  has  no  jurisdiction  in  the  case.  Legal 
notice  can  not  be  given,  and  consequently  there  can  be 
no  obligation  to  appear,  and  of  course  there  can  be  no 
legal  default.  The  judgment  of  the  Circuit  Court  is 
therefore  affirmed  with  costs  accordingly. 

Sec.  1 8.  Next  in  order  of  the  powers  conferred  upon 
Congress  is  the  one  "to  coin  money,  regulate  the  value 
thereof,  and  of  foreign  coin,  and  fix  the  standard  of 
weights  and  measures ;  and  to  provide  for  the  punishment 
of  counterfeiting  the  securities  and  current  coin  of  the 
United  States." 

The  powers,  as  incident  to  the  power  of  borrowing 
money  and  issuing  bills  or  notes  of  the  government  for 
money  borrowed,  of  impressing  upon  those  notes  or 
bills  the  quality  of  being  a  legal  tender  for  the  payment  of 
private  debts,  was  a  power  universally  understood  to 
belong  to  sovereignty  in  Europe  and  America  at  the 
time  of  the  framing  and  adoption  of  the  Constitution  of 
the  United  States.  The  governments  of  Europe,  acting 
through  the  monarch  or  the  legislature,  according  to  the 
distribution  of  powers  under  their  respective  Constitu- 


CONGRESS.  69 

tions,  had  and  have  as  sovereigns  a  power  of  issuing 
paper  money  and  of  stamping  coin.  This  power  has  been 
distinctly  recognized  in  an  important  modern  case,  ably 
argued  and  fully  considered,  in  which  the  Emperor  of 
Austria,  as  King  of  Hungary,  obtained  from  the  Eng- 
lish Court  of  Chancery  an  injunction  against  the  issue 
on  England,  without  his  license,  of  notes  purporting  to 
be  public  paper  money  of  Hungary.*  The  power  of  issu- 
ing bills  of  credit,  and  making  them,  at  the  discretion  of 
the  legislature,  a  tender  in  payment  of  private  debts,  had 
long  been  in  existence  in  America  among  the  several  col- 
onies and  States,  and  during  the  Revolutionary  War  the 
States,  upon  the  recommendation  of  the  Congress  of  the 
Confederation,  had  made  the  bills  issued  by  Congress  a 
legal  tender,''  On  this  point  Justice  Strong  in  the  Legal 
Tender  Cases  rightly  observed :  ''Every  contract  for  the 
payment  of  money,  simply,  is  necessarily  subject  to 
the  constitutional  power  of  the  government  over  the 
currency,  whatever  that  power  may  be,  and  the  obliga- 
tion of  the  parties  is  therefore  assumed  with  reference 
to  that  power." 

It  is  now  settled  beyond  question  that  Congress  has 
the  exclusive  power  to  incorporate  national  banks.  It 
is  also  beyond  question  settled  that  the  national  banks, 
for  their  own  profit  as  well  as  for  the  use  of  the  govern- 

^  Austria  v.  Day,  2  Giff.  628,  and  3  D.  F.  v.  T.  217. 
*Juilliard  v.  Greenman,   no  U.  S.  421. 


70  CONGRESS. 

ment  in  its  money  transactions,  may  issue  bills  which 
under  ordinary  circumstances  pass  from  hand  to  hand 
as  money  at  their  nominal  value,  and  which  when  so 
current  the  law  has  always  recognized  as  a  good  tender 
in  payment  of  money  debts,  unless  specifically  objected 
to  at  the  time  of  tender/  The  reason  of  this  understand- 
ing is,  in  the  language  of  Justice  Johnson,  "that  power 
over  the  currency  of  the  country,  the  framers  of  the 
Constitution  evidently  intended  to  give  to  Congress 
alone." 

Having  thus,  in  the  exercise  of  undisputed  constitu- 
tional powers,  undertaken  to  provide  a  currency  for  the 
whole  country,  it  can  not  be  questioned  that  Congress 
may,  constitutionally,  secure  the  benefit  of  it  to  the  people 
by  appropriate  legislation.  To  this  end,  Congress  has 
denied  the  quality  of  legal  tender  to  foreign  coins,  and  has 
provided  by  law  against  the  imposition  of  counterfeit  and 
base  coin  on  the  community.  To  the  same  end.  Congress 
may  restrain,  by  suitable  enactments,  the  circulation  as 
money  of  any  note  not  issued  under  its  own  authority. 
Without  this  power,  indeed,  its  attempt  to  secure  a  sound 
and  uniform  currency  for  the  country  must  be  futile.* 

Sec.  19.  The  power  of  Congress  to  fix  the  "standard" 
of  weights  and  measures  is  exclusive.  There  could  be 
no  "standard"  if  this  were  questioned.     But  when  there 

^  U.  S.  Bank  v.  Bank  of  Georgia,  10  Wheat.  316. 
'8  Wall.  549,  loi  U.  S.  6. 


CONGRESS.  71 

was  no  act  of  Congress,  as  in  the  case  of  Weaver  v. 
Fegely,  on  the  question  of  how  many  pounds  should  make 
a  ton,  State  statute  is  constitutional  and  valid,  as  was 
that  of  Pennsylvania.  In  this  case  Judge  Lewis  said, 
among  other  things:  "But  it  seems  to  be  the  thought, 
by  the  plaintiff  in  error,  that  the  mere  grant  of  this  power 
to  Congress,  although  not  exercised  by  that  body,  ex- 
tinguishes it  in  the  States.  This  is  contrary  to  the  rule 
of  construction  adopted  by  all  approved  authorities. 
Alexander  Hamilton,  who  was  not  likely  to  relinquish 
Federal  authority  where  he  could  maintain  it  with  any 
show  of  reason,  states  the  rule  thus :  'This  exclusive 
delegation  or  rather  this  alienation  of  the  State  sovereign- 
ty, exists  only  in  three  cases:  ist,  where  the  Constitu- 
tion in  express  terms  granted  an  exclusive  authority  to 
the  Union;  2d,  where  it  granted  an  authority  to  the 
Union  and  at  the  same  time  prohibited  States  from  exer- 
cising the  like  authority;  3d,  where  it  granted  an  au- 
thority to  the  Union  to  which  a  similar  authority  in  the 
States  would  be  absolutely  and  totally  contradictory  and 
repugnant.'  It  is  not  pretended  that  the  grant  of  the 
power  to  regulate  weights  and  measures  is  exclusive  in 
express  terms  nor  that  the  States  are  expressly  prohib- 
ited from  exercising  it.  The  State  sovereignties  are 
therefore  to  be  extinguished,  as  regards  this  subject,  if 
at  all,  by  mere  implication.     But  implication  can  only 


72  CONGRESS. 

arise  where  the  State  authority  is  absolutely  and  totally 
contradictory  and  repugnant  'to  the  power  delegated  to 
Congress.'  These  terms  necessarily  imply  the  pre- 
existence  of  something  to  contradict  or  oppose.  But 
there  is  nothing  whatever  either  in  the  Constitution  or 
in  the  act  of  Congress,  which  the  act  of  assembly  in  any 
respect  contravenes  or  opposes.  It  is  therefore  perfectly 
constitutional."  The  true  rule  in  this  respect  was  cor- 
rectly stated  by  Chief  Justice  Tilghman ; '  "where  the 
authority  of  the  States  is  taken  away  by  implication,  they 
may  continue  to  act  until  the  United  States  exercise  their 
power,  because,  until  such  exercise,  there  can  be  no  in- 
compatibility." The  decision  of  the  Supreme  Court  of 
Pennsylvania,  in  the  case  referred  to,  was  affirmed  in 
the  Supreme  Court  of  the  United  States. 

In  every  State  of  the  Union  weights  and  measures  have 
been  constantly  governed  either  by  a  standard  established 
by  a  State  statute,  or  by  the  common  law  of  the  State. 
The  power  of  each  State  to  establish  its  own  common  law 
on  this  subject  has  never  been  denied.  Their  right  to  do 
so,  until  Congress  shall  act  on  the  subject,  admits  of  no 
doubt,* 

Sec.  20.  Now  as  to  counterfeiting,  we  have  heretofore 
reached  the  understanding  that  the  power  of  coining 
money  and  of  regulating  its  value  was  delegated  to  Con- 

*  Moore  v.  Houston,  3  S.  &  R.  178. 

*  Weaver  v.  Fegely,  -29  Penn.  State.  27. 


CONGRESS.  73 

gress  by  the  Constitution  for  the  very  purpose  of  creating 
and  preserving  the  uniformity  and  purity  of  such  a 
standard  of  value.  We  have  also  concluded  that  that 
power  of  Congress  is  so  understood  on  account  of 
the  impossibility,  which  was  foreseen,  of  otherwise  pre- 
venting the  inequalities  and  the  confusion  necessarily  in- 
cident to  different  views  of  policy,  which  in  different 
communities  would  be  brought  to  bear  on  this  subject. 
Thus  the  specific  power  "to  coin  money"  was  given  to 
Congress,  founded  upon  public  necessity.  Then  we  can 
at  once  see  that  that  power  must  carry  with  it  the  co- 
related  power  of  "protecting  the  creature  and  object" 
of  it. 

It  is  nonsense  to  suppose  for  one  moment  that  this  high 
and  exclusive  authority  of  Congress,  and  the  power  to 
secure  the  objects  in  question  would  be  disputed. 

One  Marigold  was  charged  with  having  brought  into 
the  United  States  from  a  foreign  place  certain  counter- 
feit coin  in  violation  of  Section  20  of  the  Act  of  Congress 
of  March  3,  1826,  entitled  "An  act  more  effectually  to 
provide  for  the  punishment  of  certain  crimes  against  the 
United  States."  The  defendant  having  demurred  to  the 
indictment,  the  judge  certified  a  division  of  opinion  as 
follows :  "First,  whether  Congress,  under  and  by  virtue 
of  the  Constitution,  had  power  to  enact  so  much  of  the 
said  twentieth  section  as  relates  to  bringing  into   the 


74  CONGRESS. 

United  States  counterfeit  coins;  secondly,  whether  Con- 
gress under  and  by  virtue  of  the  Constitution,  had  power 
to  enact  so  much  of  the  said  twentieth  section  as  relates 
to  uttering,  publishing,  passing  and  selling  of  the  counter- 
feit coins  therein  specified."  The  question  was  brought 
up  to  the  United  States  Supreme  Court.  Justice  Daniel, 
delivering  the  opinion  of  the  court,  said :  "If  the  me- 
dium which  the  government  was  authorized  to  create  and 
establish  could  be  immediately  expelled  and  one  substi- 
tuted that  it  had  neither  created,  estimated  nor  author- 
ized— one  possessing  no  intrinsic  value — then  the  power 
conferred  by  the  Constitution  would  be  useless,  wholly 
fruitless  of  every  end  it  was  designed  to  accomplish. 

"We  admit  that  the  clause  of  the  Constitution  author- 
izing Congress  to  provide  for  the  punishment  of  counter- 
feiting the  securities  and  current  coin  of  the  United 
States  does  not  embrace  within  its  language  the  offence 
of  uttering  or  circulating  spurious  or  counterfeited  coin 
(the  term  'counterfeit,'  both  by  its  etymology  and  com- 
mon acceptance,  signifying  the  fabrication  of  a  false  image 
or  representation)  ;  nor  do  we  think  it  necessary  or  reg- 
ular to  seek  the  foundation  of  the  offence  of  circulating 
spurious  coin,  or  for  the  origin  of  the  right  to  punish  that 
offence,  either  in  the  section  of  the  statute  before  quoted, 
or  in  the  clause  of  the  Constitution.  We  trace  both  the 
offence  and  the  authority  to  punish  it  to  the  power  given 


CONGRESS.  75 

by  the  Constitution  to  coin  the  money,  and  to  the  cor- 
responding and  necessary  power  and  obligation  to  pro- 
tect and  to  preserve  the  purity  of  this  constitutional  cur- 
rency for  the  benefit  of  the  nation. 

"We  therefore  order  it  to  be  certified  to  the  Circuit 
Court  of  the  United  States  for  the  Northern  district  of 
New  York,  in  answer  to  the  questions  propounded  by 
that  court: 

"i.  That  Congress  had  power  and  authority,  under  the 
Constitution,  to  enact  so  much  of  the  twentieth  section 
of  the  act  of  March  3,  1826,  entitled  'An  act  more  effect- 
ually to  provide  for  the  punishment  of  certain  crimes 
against  the  United  States,  and  for  other  purposes,'  as  re- 
lates to  bringing  into  the  United  States  counterfeit  coins ; 

"2.  That  Congress,  under  and  by  virtue  of  the  Constitu- 
tion, had  power  to  enact  so  much  of  the  said  twentieth 
section  as  relates  to  the  utterance,  publishing,  passing 
and  selling  of  the  counterfeit  coin  therein  specified." ' 

Sec.  21.  The  direct  power  given  to  Congress  to  enact 
the  laws  in  organizing,  managing  and  controlling  the 
post  offices  and  post  roads  of  the  United  States,  has  never 
been  the  subject  of  question  because  of  the  express  power 
given  by  the  seventh  clause  of  Section  8,  Article  I,  of 
the  Constitution.  But  we  are  aware  that  the  incidental 
powers  have  often  been  a  question  of  controversy. 

^U.  S.  V.  Marigold,  9  How.  560.  18  Curtis  261.  Fox  v.  The 
State  of  Ohio,  5  How.  410. 


y^  CONGRESS. 

Every  road  within  a  State  or  Territory,  including 
railroads,  canals,  turnpikes  and  navigable  waters,  existing 
or  created  within  a  State  by  the  national  legislation,  be- 
comes a  post  road.'  In  ex  parte  Jackson,  it  was  held 
that  the  power  vested  in  Congress  to  establish  post  offices 
and  post  roads  embraced  the  regulation  of  the  entire  postal 
system  of  the  country,  and  that  under  it  Congress  may 
designate  what  may  be  carried  in  the  mail  and  what  ex- 
cluded ;  that  in  excluding  various  articles  from  the  mails 
the  object  of  Congress  is  not  to  interfere  with  the  freedom 
of  the  press  or  with  any  other  right  of  the  people,  but  to 
refuse  the  facilities  for  distribution  of  matter  deemed  in- 
jurious by  Congress  to  the  public  morals;  and  that  the 
transportation  in  any  other  way  of  matters  excluded  from 
the  mails  would  not  be  forbidden.* 

Sec.  22.  In  re  Rapier  case.  Chief  Justice  Fuller  clearly 
expressed  the  criterion  of  the  incidental  power.  The  dis- 
tinguished jurist  said:  "The  States  before  the  Union 
was  formed  could  establish  post  offices  and  post  roads  and 
in  doing  so  could  bring  into  play  the  police  power  in  the 
protection  of  their  citizens  from  the  use  of  the  means 
provided  for  purposes  supposed  to  exert  a  demoralizing 
influence  upon  the  people.  When  the  power  to  establish 
post  offices  and  post  roads  was  surrendered  to  Congress 
it  was  a  complete  power  and  the  grant  carried  with  it  the 

'  Clinton  Bridge,   lo  Wall.  454. 
'  Ex  parte  Jackson,  96  U.  S.  727. 


SOME    MEMBERS    OF    THE    HOUSE    OF    REPRESENTATIVES.     FIFTY-NINTH    CONGRESS 


Some  Members  of  the  House  of  Representatives  of  the  United 
States,  59th  Congress,  1st  Session 

1.  George    S.    Legare,   the   United    States    Representative    from    South    Carolina,    was 

educated  in  the  Porter  Academy  of  Charleston  and  the  University  of  South 
Carolina  and  is  a  graduate  of  the  Georgetown  University,  Washington,  D.  C. 

2.  Julius  Kahn,  the  United  States  Representative  from  California,  was  a  member  of  ■ 

the  State  Legislature.  He  was  educated  in  the  public  schools  of  San  Francisco. 

3.  Sydney  Emanuel    Mudd,   the   United   States   Representative    from    Maryland,    was 

president  of  the  State  House  of  Delegates.  He  was  educated  in  St.  John's 
College,  the  University  of  Virginia,  and  Georgetown  University,  at  Washing- 
ton, D.  C. 

4.  James  Carson  Needham,  the  United  States  Representative  from  California,  was  a 

State  Senator.  He  is  a  graduate  of  the  University  of  the  Pacific,  and  the 
Alichigan  University. 

5.  Llewellyn   Powers,  the  United  States  Representative  from  Maine,  was  twice  Gov- 

ernor of  the  State  and  is  a  graduate  of  the  Ricker  Classical  Institute,  the 
University  of   Albany  and   Colby  University. 

6.  William  Randolph  Hearst,  the  United  States  Representative  from  New  York,  was 

educated  in  the  public  schools  of  San   Francisco  and   Harvard  Universitj^ 

7.  William   Jennings    Bryan,   ex-United    States    Representative,    was    a    candidate    for 

the  Presidency  of  the  United  States.  He  was  educated  in  the  Illinois  College. 

8.  Joseph    R.    Knowland,    the    United    States    Representative    from    California,    was 

chairman  of  the  San  Francisco  Police  Investigating  Committee  of  the  State 
Legislature  and  was  a  State  Senator.  He  was  educated  at  the  University  of 
the   Pacific. 

9.  Jesse   Overstreet,   the   United   States   Representative   from   Indiana,   was    Secretary 

of  the  National  Republican  Congressional  Committee.  He  was  educated  in  the 
public  schools  of  Indiana. 

10.  Eban   Wever   Martin,   the   United   States   Representative   from   South   Dakota,   was 

President  of  the  Board  of  Education  of  the  City  of  Deadwood.  He  was  edu- 
cated in  the  Michigan  University,  and  is  a  graduate  of  the  Cornell  University. 

11.  Morris    Sheppard,    the    United    States    Representative    from    Texas,    was    the    first 

president  of  the  Texas  Fraternal  Congress.  He  is  a  graduate  of  the  LTniversity 
of  Texas  and  Yale  University. 

12.  Richard  Wagner  Parker,  the  United  States  Representative  from  New  Jersey,  was 

a  member  of  the  House  of  Assembly  of  the  State,  and  is  a  graduate  of  the 
Princeton  University  and  also  of  the  Columbia  University  of  New  York. 

13.  Robert  W.    Miers,   ex-United   States   Representative   from   Indiana,   was   the    State 

Circuit  Judge  and  is  a  graduate  of  the  State  University  of  Indiana,  Bloom- 
ington,   Ind. 

14.  G.  G.   Gilbert,  the  United   States   Representative  from   Kentucky  was  chairman  of 

the  Judiciary  Committee  of  the  State  Senate,  and  is  a  graduate  of  the  Uni- 
versity of  Louisville. 

15.  Charles   Arnette   Towne,   the  United   States   Representative   from   New   York,   was 

Chairman  of  the  Silver  Republican  National  Committee.  He  is  a  graduate  of 
Michigan   University. 

16.  Edgar  Dean  Crumpacker.  the  United  States  Representative  from   Indiana,  was  an 

Appellate  Judge  in  the  State.  He  was  educated  at  the  Valparaiso  Academy. 

17.  Elias  S.   Holliday,  the  United  States  Representative  from  Indiana,  is  a  prominent 

lawyer  in  his  State. 

18.  Nicholas  Longworth,  the  United  States  Representative  from  Ohio,  was  a  member 

of  the  State  House  of  Representatives,  and  of  the  State  Senate.  He  is  a 
graduate  of  Harvard  University  and  also  the  Cincinnati  Law  School. 


CONGRESS.  79 

right  to  exercise  all  the  powers  which  made  that  power 
effective.  The  argument  that  there  is  a  distinction  between 
mala  prohihita  and  mala  in  se,  and  that  Congress  might 
forbid  the  use  of  the  mails  in  promotion  of  such  acts  as 
are  universally  regarded  as  mala  in  se,  including  murder, 
arson,  burglary,  etc.,  and  the  offence  of  circulating  ob- 
scene books  and  papers,  but  can  not  do  so  in  respect  of 
other  matters  which  it  might  regard  as  criminal  or  im- 
moral, but  which  it  has  no  power  itself  to  prohibit,  in- 
volves a  concession  which  is  fatal  to  the  contention  of 
petitioners  since  it  would  be  for  Congress  to  determine 
what  are  within  and  what  are  without  the  rule;  but  we 
think  there  is  no  room  for  such  a  distinction  here,  and 
that  it  must  be  left  to  Congress  in  the  exercise  of  a  sound 
discretion  to  determine  in  what  manner  it  will  exercise 
the  power  it  undoubtedly  possesses.  We  can  not  regard 
the  right  to  operate  a  lottery  as  a  fundamental  right  in- 
fringed by  the  legislation  in  question;  nor  are  we  able 
to  see  that  Congress  can  be  held,  in  its  enactment,  to  have 
abridged  the  freedom  of  the  press.  The  circulation  of 
newspapers  is  not  prohibited,  but  the  government  de- 
clined to  become  an  agent  in  the  circulation  of  printed 
matter  which  it  regards  as  injurious  to  the  people.  The 
freedom  of  communication  is  not  abridged  within  the 
intent  and  meaning  of  the  constitutional  provision  unless 


8o  CONGRESS. 

Congress  is  absolutely  destitute  of  any  discretion  as 
to  what  shall  or  shall  not  be  carried  in  the  mails,  and 
compelled  arbitrarily  to  assist  in  the  dissemination  of 
matters  condemned  by  its  judgment,  through  the  gov- 
ernment agencies  which  it  controls.  That  power  may 
be  abused  furnishes  no  ground  for  a  denial  of  its  exist- 
ence, if  government  is  to  be  maintained  at  all." ' 

Sec.  23.  Congress  is  further  empowered  "to  pro- 
mote the  progress  of  science  and  useful  arts  by  securing, 
for  limited  times,  to  authors  and  inventors,  the  exclusive 
right  to  their  respective  writings  and  discoveries." 
Within  the  meaning  and  intent  of  this  express  power 
given  to  Congress  are  granted  copyrights  and  patents 
to  the  inventors,  authors,  designers,  or  proprietors  of 
books,  maps,  charts,  pictures,  prints,  statues,  models,  and 
all  other  rights  pertaining  thereto.  The  laws  of  civilized 
countries  recognize  the  power  of  municipal  law  to  create 
property  out  of  abstract  things.  It  is  this  property,  not 
choses,  but  things  in  possession,  that  are  called  copy- 
rights and  patents.  Under  the  common  law  of  Great 
Britain  the  specie  of  property  in  literary  labor  or  ideas 
of  men  were  jealously  protected,  but  when  such  interest 
and  rights  were  published,  the  common  law  protection 
ceased  and  the  parliamentary  provisions  substituted  in 
their  full  extent,  although  we  are  aware  of  the  great  case 

^  In  re  Rapier,  143  U.  S.  no. 


CONGRESS.  8 1 

of  Miller  v.  Taylor,  which  was  decided  in  favor  of  the 
common  law  right  before  the  statute/  Let  us  reproduce 
a  few  authorities  which  settled  the  common  law  protec- 
tion in  reference  to  the  statutory  provisions.  Lord  Ken- 
yon  pointed  out  in  saying  that  "All  arguments  in  the 
support  of  the  rights  of  learned  men  in  their  works  must 
ever  be  heard  with  great  favor  by  men  of  liberal  minds 
to  whom  they  are  addressed."'  It  was  probably  on  that 
account  that  when  the  great  question  of  literary  property 
was  discussed,  some  judges  of  enlightened  understanding 
went  the  length  of  maintaining  that  the  right  of  publi- 
cation rested  exclusively  with  the  authors  and  those 
who  claimed  under  them  for  all  time;  but  other  opinion 
finally  prevailed,  which  established  that  the  right  was 
confined  to  the  times  limited  by  the  act  of  Parliament. 
Lord  Ellenborough,  on  this  point,  also  remarked:'  "It 
has  been  said  that  the  statute  of  8  Anne  has  three  objects, 
but  I  can  not  subdivide  the  first  two;  I  think  it  has  only 
two.  The  counsel  for  the  plaintiff  contended  that  there 
was  no  right  of  common  law,  and  perhaps  there  might 
not  be,  but  of  that  we  have  not  particularly  anything  to 
do."  Thus  the  law  in  England  is  well  settled  since  the 
statute  of  8  Anne. 


^  Miller  v.  Taylor,  4  Barr  2303. 

'27  Term  Rep.,  627. 

*i  University  of  Cambridge  v.  Bryer,  16  East,  319. 


82  CONGRESS. 

The  literary  property  of  an  author  in  his  works  can 
only  be  asserted  under  the  statute.  But,  in  the  language 
of  Justice  McLean,  "If  the  common  law  right  of  an  au- 
thor were  shown  to  exist  in  England,  does  the  same 
right  exist  and  to  the  same  extent,  in  this  country?" 
It  is  clear  there  can  be  no  common  law  of  the  United 
States.  The  Federal  government  is  composed  of 
sovereign  and  independent  States;  each  of  which 
may  have  its  local  usages,  customs,  and  common  law. 
There  is  no  principle  which  pervades  the  Union,  and 
has  the  authority  of  law,  that  is  not  embodied  in  the  Con- 
stitution of  laws  of  the  Union.  The  common  law  could 
be  made  a  part  of  our  Federal  system,  only  by  legislative 
adoption. 

No  one  can  deny  that  when  the  legislature  is  about  to 
vest  an  exclusive  right  in  an  author  or  an  inventor,  they 
have  the  power  to  prescribe  the  conditions  on  which 
such  right  shall  be  enjoyed;  and  that  no  one  can  avail 
himself  of  such  right  who  does  not  substantially  comply 
with  the  requisitions  of  the  law.  This  principle  is 
familiar  as  regards  patent  rights  and  it  is  the  same 
in  relation  to  the  copyright  of  a  book.* 

Sec.  24.  So  far  as  we  are  able  to  understand  the  specific 
power  of  Congress  under  consideration,  let  us  take  up 
the  same  in  its  application  to  the  reserved  right  of  the 

'Wheaton  v.  Peters,  8  Pet.  591.     11  Curtis  223. 


CONGRESS.  83 

States.  In  doing  so,  we  will  be  at  once  confronted  by 
the  legal  wall  erected  by  the  great  decision  of  the  United 
States  Supreme  Court  in  the  case  of  Patterson  v.  Ken- 
tucky. In  getting  over  the  wall  we  can  see  almost  every 
thing  we  want.'  The  specific  offence  charged  in  the 
indictment  was  that  the  plaintiff  in  error  had  sold,  with- 
in the  State,  to  one  Davis,  an  oil  known  as  the  Aurora 
oil,  the  casks  containing  it  having  been  previously  branded 
by  an  authorized  inspector  with  the  words  "unsafe  for 
illuminating  purposes."  That  particular  oil  is  the  same 
for  which,  in  1867,  letters  patent  were  granted  to  Henry 
C.  DeWitt,  of  whom  the  plaintiff  in  error  is  assignee,  by 
assignment  duly  recorded  as  required  by  the  laws  of  the 
United  States.  Upon  the  trial  of  the  case  it  was  agreed 
that  the  Aurora  oil  could  not,  by  any  chemical  combina- 
tion described  in  the  patent,  be  made  to  conform  to  the 
standard  or  test  required  by  the  Kentucky  statute  as  a 
prerequisite  to  the  right,  within  that  State,  to  sell  or  to 
offer  for  sale  illuminating  oil  of  the  kind  designated. 
The  plaintiff  in  error,  as  assignee  of  the  patent,  in  as- 
serting the  right  to  sell  the  Aurora  oil  in  any  part  of  the 
United  States,  claims  that  no  State  could,  consistently 
with  the  Federal  Constitution  and  the  laws  of  Congress, 
prevent  or  abstract  the  exercise  of  that  right,  either  by 
express   words   of   prohibition   or   by   regulations,   pre- 

^  Patterson  v.  Kentucky,  97  U.  S.  501. 


84  CONGRESS. 

scribed  tests  to    which    the    patented    article    could  not 
be  made  to  conform. 

For  this  great  and  important  case  the  Supreme  Court 
decided  that  the  construction  of  the  Constitution  and  laws 
of  the  United  States,  made  by  the  plaintiff  in  error  is 
inadmissible.  Justice  Harlan,  the  great  constitutional 
expounder  of  the  day,  rendering  the  opinion  of  the  court, 
said:  "Congress  is  given  power  to  promote  the  prog- 
ress of  science  and  the  useful  arts.  To  that  end  it 
may,  by  all  necessary  and  proper  laws,  secure  to  inventors, 
for  limited  times,  the  exclusive  right  to  their  inventions. 
That  power  has  been  exercised  in  the  various  statutes 
prescribing  the  terms  and  conditions  upon  which  letters 
patent  may  be  obtained.  It  is  true  that  letters  patent, 
pursuing  the  words  of  the  statute,  do,  in  terms,  grant  to 
the  inventors,  his  heirs  and  assigns,  the  exclusive  right 
to  make,  use  and  vend  to  others  his  invention  or  discov- 
ery, throughout  the  United  States  and  the  territories 
thereof.  But  obviously,  this  right  is  not  granted  or  se- 
cured, without  reference  to  the  general  powers  which 
the  several  States  of  the  Union  unquestionably  possess 
over  their  purely  domestic  affairs,  whether  by  internal 
commerce  or  of  police.  In  the  American  constitutional 
system,  says  Mr.  Cooley,  the  power  to  establish  the  or- 
dinary regulations  of  policy  has  been  left  with  the  in- 
dividual States  and  can  not  be  assumed  by  the  national 


CONGRESS.  85 

government.  (Cooley,  Const.  Lim.  574.)  While  it  is 
very  difficult  to  make  the  precise  boundaries  of  that 
power  or  to  indicate,  by  any  general  rule,  the  exact  lim- 
itations which  the  States  must  observe  in  its  exercise,  the 
existence  of  which  power  in  the  States  has  been  uni- 
formly recognized  in  this  court." 

By  the  settled  doctrine  of  this  court  the  police  power 
extends,  at  least,  to  the  protection  of  the  lives,  the  health, 
and  the  property  of  the  community  against  the  injurious 
exercise  by  any  citizen  of  his  own  rights.  State  legis- 
lation, strictly  and  legitimately  for  police  purposes,  does 
not,  in  the  sense  of  the  Constitution,  necessarily  entrench 
upon  any  authority  which  has  been  confided,  expressly 
or  by  implication,  to  the  national  government.  The 
Kentucky  statute  under  examination  manifestly  belongs 
to  that  class  of  legislation.  It  expresses  in  the  most  sol- 
emn form  the  deliberate  judgment  of  the  State  that  burn- 
ing fluids  which  ignite  or  permanently  burn  at  less  than 
a  prescribed  temperature  are  unsafe  for  illuminating  pur- 
poses. Whether  the  policy  thus  pursued  is  wise  or  un; 
wise,  it  is  not  the  province  of  the  national  authority  to 
determine. 

The  Kentucky  statute  being,  then,  an  ordinary  police 
regulation  for  the  government  of  those  engaged  in  the 
internal  commerce  of  that  State,  the  only  remaining  ques- 


86  CONGRESS. 

tion  is,  whether,  under  the  operation  of  the  Federal  Con- 
stitution and  the  laws  of  Congress,  it  is  without  effect  in 
cases  where  the  oil,  although  condemned  by  the  State  as 
unsafe  for  illuminating  purposes,  has  been  made  and  pre- 
pared for  sale  in  accordance  with  a  discovery  of  which 
letters  patent  have  been  granted.  We  are  of  the  opinion 
that  the  right  conferred  upon  the  patentee  and  his  assigns 
to  use  and  vend  the  corporeal  thing  or  article,  brought 
into  existence  by  the  application  of  the  patents  discov- 
ered, must  be  exercised  in  subordination  to  the  police 
regulations  which  the  State  established  by  the  statute  of 
1874.  The  right  of  property  in  the  physical  substance, 
which  is  the  fruit  of  discovery,  is  altogether  distinct  from 
the  right  in  the  discovery  itself,  just  as  the  property  in 
the  instruments  or  plates  by  which  copies  of  a  map  are 
multiplied,  is  distinct  from  the  copyright  of  the  map 
itself.  The  right  to  sell  the  Aurora  oil  was  not  derived 
from  the  letters  patent  but  it  existed  and  could  have 
been  exercised  before  they  were  issued,  unless  it  was 
prohibited  by  valid  local  legislation.  All  which  they 
primarily  secure  is  the  exclusive  right  in  the  discovery. 
That  is  an  incorporeal  right,  a  property  in  motion,  having 
no  corporeal  tangible  substance.'  Its  enjoyment  may  be 
secured  and  protected  by  national  authority  against  all 
interference,  but  the  use  of  the  tangible  property  which 

*  Miller  v.   Taylor,  4   Barr  2396. 


CONGRESS.  87 

comes  into  existence  by  the  application  of  the  discovery- 
is  not  beyond  the  control  of  State  legislation,  simply  be- 
cause the  patentee  acquires  a  monopoly  in  his  discovery. 
The  distinguished  constitutional  authority  cited  to  say, 
which  citation  in  its  conclusion  emphasizes :  "A  person 
might  with  as  much  propriety  claim  a  right  to  commit 
murder  with  an  instrument,  because  he  held  a  patent  for 
it  as  a  new  and  useful  invention."  * 

Sec.  25.  The  power  "to  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas,  and  offences  against 
the  law  of  nations"  is  conferred  upon  Congress  by  the 
Constitution. 

Congress  thereupon  enacted,  in  pursuance  to  the  Con- 
stitution, the  law  which  says  that  "robbery  and  murder 
committed  on  the  high  seas  shall  be  deemed  piracy."*  It 
further  provided  in  a  separate  act  that  "If  any  person  or 
persons  whatsoever,  shall  upon  the  high  seas,  commit 
the  crime  of  piracy,  as  defined  by  the  laws  of  nations,  and 
such  offender  or  offenders  shall  be  brought  into,  or  found 
in  the  United  States,  every  such  offender  or  offenders 
shall,  upon  conviction  thereof,  etc.,  be  punished  with 
death."'  In  application  of  these  letters  of  statutes  the 
series  of  contest  and  contention  has  hitherto  been  made. 
One  of  the  most  discussed  is  that  Congress  is  bound  to 

'Vanini  et  al  v.  Paine  et  al.  (Del.)  65. 
'  I  Stats,  at  Large  113. 
*  Stats,  at  Large  513. 


88  CONGRESS. 

define,  in  terms,  the  offence  of  piracy,  and  is  not  at 
liberty  to  leave  it  to  be  ascertained  by  judicial  interpreta- 
tion. When  this  question  of  the  specific  power  was 
brought  before  the  supreme  tribunal  of  the  land  in  the 
case  of  The  Irresistible  Justice  Story  in  rendering  the 
opinion  of  the  court  said :  "The  power  given  to  Congress 
is  not  merely  to  define  and  punish  piracies ;  if  it  were,  the 
words  'to  define'  would  seem  almost  superfluous,  since 
the  power  to  punish  piracies  would  be  held  to  include  the 
power  of  ascertaining  and  fixing  the  definition  of  the 
crime.  But  the  power  is  also  given  'to  define  and  punish 
felonies  on  the  high  seas,  and  offences  against  the  law  of 
nations.'  The  term  'felonies'  has  been  supposed  not  to 
have  a  very  exact  and  determinate  meaning  in  relation 
to  offences  of  the  common  law  committed  within  the 
body  of  a  county.  However  this  may  be,  in  relation  to 
offences  on  the  high  seas,  it  is  necessarily  somewhat  in- 
determinate, since  the  term  is  not  used  in  the  criminal 
jurisdiction  of  the  admiralty  in  the  technical  sense  of  the 
common  law.  Offences,  too,  against  the  law  of  nations, 
cannot,  with  any  accuracy,  be  said  to  be  completely  as- 
certained and  defined  in  any  public  code  recognized  by  the 
common  consent  of  nations." 

But  supposing  Congress  were  bound  in  all  cases  to 
define  the  offence,  still  there  is  nothing  which  restricts 
it  to  a  mere  logical  enumeration  in  detail  of  all  the  facts 


CONGRESS,  89 

constituting  the  offence.  Congress  may  as  well  define 
by  using  a  term  of  a  known  and  determinate  meaning,  as 
by  an  express  enumeration  of  all  the  particulars  included 
in  that  term.  In  respect  to  murder,  where  "malice  afore- 
thought" is  of  the  essence  of  the  offence  even  if  the  com- 
mon law  definition  were  quoted  in  express  terms,  we 
should  still  be  driven  to  deny  that  the  definition  was  per- 
fect, since  the  meaning  of  "malice  aforethought"  should 
remain  to  be  gathered  from  the  common  law.  There 
would  then  be  no  end  to  our  difficulties,  for  each  would 
involve  some  term  which  might  still  require  some  new 
explanation. 

Next  the  most  important  feature  of  the  subject  under 
our  consideration  is  whether  the  crime  of  piracy  is  de- 
fined by  the  law  of  nations  with  reasonable  certainty. 
Every  writer  on  the  law  of  nations  alludes  to  piracy  as 
a  crime  of  a  settled  and  determinate  nature.  All  writers 
concur  in  holding  that  robbery  or  forcible  depredations 
upon  the  sea,  animo  furandi  is  piracy.'  English  com- 
mon law  also  recognizes  and  punishes  piracy  as  an  offence, 
not  against  its  own  municipal  code,  but  as  an  offence 
against  the  law  of  nations  which  is  part  of  the  common 
law,  as  an  offence  against  the  universal  law  of  society, 
a  pirate  being  deemed  an  enemy  of  the  human  race.* 

^  Am.  and  Eng.  Enc.  of  Law,  18,  p.  461 ;  Hall's  Int.  Nat.  Law,  p. 
169;  Taylor's  Int.  Nat.  Pub.  Law,  p.  234. 
*  Rex  V.  Dawson,  5  State  Trial;  Hawk  P.  C.  c.  37,  3,  2. 


90  CONGRESS. 

Whatever  may  be  the  diversity  of  definitions  in  other 
respects,  the  writers  on  the  common  law,  or  the  maritime 
law,  or  the  law  of  nations,  all  treat  the  question  in  the 
same  way,  agreeing  that  piracy  is  an  ofifence  against  the 
law  of  nations,  and  that  its  true  definition,  by  that  law, 
is  robbery  upon  the  sea/ 

The  opinion  of  the  Supreme  Court  in  the  case  of  The 
Irresistible^  was  delivered  by  Justice  Story  who,  in  con- 
clusion, said :  "The  special  verdict  finds  that  the  prisoner 
is  guilty  of  the  plunder  and  robbery  charged  in  the  in- 
dictment, and  finds  certain  additional  facts  from  which 
it  is  most  manifest  that  he  and  his  associates  were,  at 
the  time  of  committing  the  offence,  freebooters  upon  the 
sea,  not  under  the  acknowledged  authority  or  deriving 
protection  from  the  flag  or  commission  of  any  govern- 
ment. If  under  such  circumstances  the  offence  be  not 
piracy,  it  is  difficult  to  conceive  of  any  which  would  more 
completely  fit  the  definition." 

Sec.  26.  Before  concluding  the  specific  power  given, 
we  have  so  far  understood  there  remains  one  other  ques- 
tion, viz. :  What  is  the  "high  seas,"  within  the  meaning 
of  the  Constitution,  the  unwritten  understanding  of  which 
must  be  equally  important  if  not  more  so. 

Spaniards,  during  the  i6th  century,  asserted  the  right 
to  exclude  all  others  from  the  Pacific  Ocean.    So  did  the 

*  Inst.  112,  4  Bl.  Comm.  73. 


CONGRESS.  91 

Portuguese,  under  the  grant  of  Pope  Alexander  VI,  the 
exclusive  use  of  the  Atlantic  Ocean,  West  and  South  of 
the  designated  line.  The  English,  too,  in  the  17th  cen- 
tury, claimed  the  exclusive  right  to  navigate  the  seas 
surrounding  Great  Britain.'  "The  sea  is  that  which  lies 
within  the  body  of  a  county,  or  without";  says  Sir 
Matthew  Hale,  "That  arm  or  branch  of  the  sea  which 
lies  within  the  fauces  terrea,  where  a  man  can  reasonably 
discern  between  shore  and  shore,  is,  or  at  least  may  be, 
within  the  body  of  the  county,  and  therefore  within 
the  jurisdiction  of  the  sheriff  or  coroner.  That  part  of 
the  sea  which  lies  not  within  the  body  of  a  county  is 
called  the  main  sea  or  ocean."  By  the  "main  sea"  Hale 
here  means  the  same  thing  expressed  by  the  term  "high 
sea,"  "mare  altum"  or  "le  haut  meer."'  The  United 
States  Supreme  Court  said  that  it  had  been  frequently 
adjudicated  in  the  English  common  law  courts  since  the 
restraining  statutes  of  Richard  II  and  Henry  IV,  "that 
high  seas  mean  that  portion  of  the  sea  which  washes  the 
open  coast."* 

Justice  Field  delivered  the  opinion  of  the  Supreme  Court 
on  this  "high  sea"  question,  stating:  "If  there  were  no 
seas  other  than  the  ocean,  the  term  'high  seas'  would  be 
limited  to  the  open,  unenclosed  waters  of  the  ocean,  but 

'  United  States  v.  Rodgers,   150  U.  S.  249.     Woosley,  Int.  Law, 
Sec.  55- 
'  De  Jure  Maxis,  C.  IV. 
'  Waring  v.  Clark,  5  How.  441. 


92  CONGRESS. 

as  there  are  other  seas  besides  the  ocean  there  must  be 
high  seas  other  than  those  of  the  ocean.  A  large  com- 
merce is  conducted  on  seas  other  than  the  ocean  and  the 
EngHsh  seas,  and  it  is  equally  necessary  to  distinguish 
between  their  open  waters  and  their  ports  and  havens 
and  to  provide  for  offences  on  vessels  navigating  those 
waters  and  for  collisions  between  them.  The  term  'high 
seas'  does  not,  in  either  case,  indicate  any  separate  and 
distinct  body  of  water,  but  only  the  open  waters  of  the 
sea  or  ocean,  as  distinguished  from  ports  and  havens 
and  waters  within  narrow  headlands  on  the  coast," 

In  that  sense  the  term  may  also  be  properly  used  in 
reference  to  the  open  waters  of  the  Baltic  and  the  Black 
Seas,  both  of  which  are  inland  seas,  finding  their  way  to 
the  ocean  by  a  narrow  and  distinct  channel.  Indeed 
whenever  there  are  seas,  free  to  the  navigation  of  all 
nations  and  people  on  their  borders,  their  open  waters 
outside  of  the  portion  "surrounded  or  enclosed  between 
narrow  headlands  or  promontories,"  on  the  coast,  as 
stated  by  Mr.  Justice  Story,  or  "without  the  body  of  a 
county,"  as  declared  by  Sir  Matthew  Hale,  are  properly 
characterized  as  high  seas,  by  whatever  name  the  bodies 
of  water  of  which  they  are  a  part  may  be  designated. 
Their  names  do  not  determine  character.^ 


*  U.  S.  V.  Rodgers,  150  U.  S.  249.     Genesee  Chief  case,  12  How. 
443.    111.  Cent.  R.  R.  Co.  v.  111.,  146  U.  S.  387. 


CONGRESS.  93 

Sec.  27.  Justice  Field,  in  considering  the  term  "high" 
of  the  high  sea,  remarked :  "It  is  to  be  observed  also 
that  the  term  'high'  in  one  of  its  significations  is  used  to 
denote  that  which  is  common,  open  and  pubhc.  Thus 
every  road,  or  way,  or  navigable  river  which  is  used 
freely  by  the  public  is  a  'high'  way.  So  a  large  body 
of  navigable  water  other  than  a  river  which  is  an  extent 
beyond  the  measurement  of  one's  unaided  vision,  and  is 
open  and  unconfined,  and  not  under  the  exclusive  con- 
trol of  any  one  nation  or  people,  but  is  the  free  high- 
way of  adjoining  nations  or  people,  must  fall  under  the 
definition  of  high  seas  within  the  meaning  of  the  statute. 
We  may  as  appropriately  designate  the  open,  unenclosed 
waters  of  the  lakes  as  the  high  seas  of  the  ocean,  or  simi- 
lar waters  of  the  Mediterranean  as  the  high  seas  of  the 
Mediterranean." ' 

Sec.  28.  According  to  the  Constitution  Congress  alone 
has  the  power  "to  declare  war,  grant  letters  of  marque 
and  reprisals,  and  make  rules  concerning  capture  on  land 
and  water;  to  raise  and  support  armies,  but  no  appropri- 
ation of  money  to  that  use  shall  be  for  a  longer  term  than 
two  years;  to  provide  and  maintain  a  navy;  to  make 
rules  for  the  government  and  regulation  of  the  land  and 
naval  forces."* 


*  U.  S.  V.  Rodgers,  150  U.  S.  249. 
'  Const.,  Art.  8,  cl.  11,  12,  13,  14. 


94  CONGRESS. 

When  differences  between  States  reach  a  point  at  which 
both  parties  resort  to  force,  or  one  of  them  does  an  act 
of  violence  which  the  other  chooses  to  look  upon  as  a 
breach  of  peace,  the  relation  of  war  is  set  up,  in  which  the 
combatants  may  use  regulated  violence  against  each  other 
until  one  of  the  two  has  been  brought  to  accept  such 
terms  as  his  enemy  is  willing  to  grant/  And  whether  the 
hostile  party  be  a  foreign  invader,  or  States  organized 
in  rebellion,  it  is  none  the  less  a  war,  although  the  declar- 
ation of  it  be  "unilateral." "  It  is  none  the  less  a  war  on 
that  account  for  war  may  exist  without  a  declaration  on 
either  side.  A  declaration  of  war  by  one  country  only, 
is  not  a  mere  challenge  to  be  accepted  or  refused  at  pleas- 
ure by  the  other.  The  battle  of  Palo  Alto  and  Resaca 
de  la  Palma  had  been  fought  before  the  passage  of  the 
act  of  Congress  of  May  13,  1846,  which  recognized  "a 
state  of  war  existing  by  the  act  of  the  Republic  of  Mexi- 
co." Similar  was  the  act  of  Congress  with  regard  to  the 
Spanish  American  War.  These  acts  not  only  provided 
for  the  future  prosecution  of  the  war,  but  were  themselves 
the  vindications  and  ratifications  of  the  acts  of  the  presi- 
dents of  respective  periods,  in  accepting  the  challenge 
without  previous  formal  declarations  of  war  by  Congress. 
The  Supreme  Court  of  the  United  States,  in  the  prize 

'Had.  Int.  Law,  15  Chap.  in. 
'  Prize  cases,  2  Black,  635. 


SOME    MEMBERS    OF    THE    UNITED    STATES     SENATE,    FIFTY-NINTH    CONGRESS 


Some  Members  of  the  United  States  Senate  in  the  59th 
Congress,  1  st  Session 


1.  George   Peabody  Whetmore.   the   United   States    Senator   from   Rliode   Island,   was 

twice   Governor  of  the   State   and   is   a   graduate   of   Yale   and    Columbia   Uni- 
versities. 

2.  Julius   C.    I)urrows,   the   United   States   Senator   from   Michigan,   was   twice   elected 

Speaker  pro  tciuporc  of  the  House  of  Representatives. 

3.  I'^red   T.    Duljois,   the   United   States    Senator   from    Idaho,   was    the   last    Delegate 

from  the  Territory  of  Idaho,  and  is  a  graduate  of  Yale  University. 

4.  William  Joel   Stone,  the  United   States   Senator   from   Missouri,   was   Governor  of 

the  State  and  is  a  graduate  of  the  Missouri  University. 

5.  Anselm  Joseph   McLaurin.  the  United   States   Senator  from   Mississippi,  was  Gov 

ernor  of  liis  State.  He  was  also  delegate  to  the  Constitutional  Con\-entiiin  in 
1890. 

6.  Joseph    H.    Millard,    the    United    States    Senator    from    Nebraska,    was    Mayor    of 

Omaha  and  is  also  a  prominent  banker. 

7.  Jacob  H.  Gallinger,  the  United  States  Senator  from   New  Hampshire,   was   Presi- 

dent of  the  State  Senate  and  is  an  alumnus  of  the  Dartmouth  College. 

8.  Benjamin    Ryan   Tillman,   the    United    States    Senator    from    South    Carolina,    was 

twice  Governor  of  the  State. 

9.  Stephen  Russell   Mallory,  the  United   States   Senator  from   Florida,  was  Represen- 

tative from  his  State  and  is  a  graduate  of  the  Georgetown  I'niversity  of 
Washington,   D.   C. 

10.  Francis  Emory  Warren,  the  United  States  Senator  from  Wyoming,  was  President 

of  the  State  Senate,  and  he  also  was  the  first  Governor  of  the  State. 

11.  Albert   J.    Beveridge,   the   United    States   Senator   from   Indiana,   is   a   graduate    of 

the   De   Pauw   University. 

12.  Charles  Dick,  the  United  States  Senator  from  Ohio,  was  a  United  States  Repre- 

sentative from  his  State.  He  is  the  successor  of  Marcus  A.  Hanna. 

13.  Chester  I.  Long,  the  United   States   Senator  from   Kansas,   was  the  United   States 

Representative  from  his   State. 

14.  Joseph  P)enson  Foraker,  the  United  States  Senator  from  Ohio,  was  Judge  of  the 

Superior  Court  of  Cincinnati  and  he  was  twice  Governor  of  the  State. 

15.  William   Pierce  Frye,  the  United  States  Senator  from  Maine,  was  Attorney  Gen- 

eral of  the  State.  He  was  President  pro  tempore  of  the  United  States  Senate, 
and  was  also  a  Peace  Commissioner  for  the  Spanish-American  War.  He  is 
an  alumnus  of  Bowdoin  and  Bates  Colleges. 


CONGRESS.  97 

cases,  in  rendering  the  decision  whether  or  not  the  law- 
fulness of  seizures  and  condemnations  as  prizes  of  ves- 
sels violating  the  blockade  of  Southern  ports  under  Pres- 
ident Lincoln's  promulgation,  said  most  vital  things. 

Justice  Grier  who  delivered  the  court's  opinion  said: 
"This  greatest  of  civil  wars  was  not  gradually  devel- 
oped by  popular  commotion,  tumultuous  assemblies,  or 
local,  unorganized  insurrections.  However  long  may 
have  been  its  previous  conception,  it  nevertheless  sprung 
forth  suddenly  from  the  parent  brain,  a  Minerva  in  the 
full  panoply  of  war.  The  President  was  bound  to  meet 
it  in  the  shape  it  presented  itself,  without  waiting  for 
Congress  to  baptize  it  with  a  name,  and  no  name  given 
to  it  by  him  or  them  could  change  the  fact.  Objection 
made  to  this  act  of  ratification,  that  it  is  ex  post  facto, 
and  therefore  unconstitutional  and  void,  might  possibly 
have  some  weight  on  the  indictment  in  a  criminal  court. 
But  the  precedents  from  that  source  can  not  be  received 
as  authoritative  in  a  tribunal  administering  public  and 
international  law."' 

Sec.  29.  Constitution  declares  that  Congress  shall 
have  power  "to  provide  for  calling  forth  the  militia,  to 
execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions;"  and  also  "to  provide  for  organiz- 

'The   Prize   Case,  2   Black.  635. 


98  CONGRESS. 

ing,  arming,  and  disciplining  the  militia,  and  for  gov- 
erning such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States."^  In  pursuance  of  this  au- 
thority, the  act  of  1795  has  provided  "that  whenever  the 
United  States  shall  be  invaded,  or  be  in  imminent  danger 
of  invasion  from  any  foreign  nation  or  Indian  tribe,  it 
shall  be  lawful  for  the  President  of  the  United  States  to 
call  forth  such  number  of  the  militia  of  the  State  or 
States  most  convenient  to  the  place  of  danger,  or  scene 
of  action,  as  he  may  judge  necessary  to  repel  such  inva- 
sion, and  to  issue  his  order  for  that  purpose  to  such  officer 
or  officers  of  the  militia  as  he  shall  think  proper." 

In  the  case  of  Martin  v.  Mott,  the  provisions  of  the  act 
of  1795  has  not  been  denied  that  it  is  within  the  consti- 
tutional authority  of  Congress,  or  that  Congress  may  not 
lawfully  provide  for  cases  of  imminent  danger  of  invasion, 
as  well  as  for  cases  where  an  invasion  has  actually  taken 
place.  Justice  Story  in  delivering  the  opinion  of  the 
court,  said  that  there  is  no  ground  for  doubt  on  this 
point,  even  if  it  had  been  relied  on,  for  the  power  to 
provide  for  repelling  invasions  includes  the  power  to 
provide  against  the  attempt  and  danger  of  invasion,  as 
the  necessary  and  proper  means  to  effectuate  the  object. 
One  of  the  best  means  to  repel  invasion  is  to  provide  the 

>U.   S.  Const.,  Art.  VIII,  el.   15,   16. 


CONGRESS.  99 

requisite  force  for  action  before  the  invader  himself  has 
reached  the  soil. 

Naturally,  free  people  are  jealous  of  the  exercise  of 
military  power.  But  American  people  all  understood  such 
power  conferred  on  the  President  is  and  shall  be  limited 
power  confined  to  cases  of  actual  invasion,  or  of  immi- 
nent danger  of  invasion.  This  limited  power  has  become 
hitherto  a  question  such  as  this:  Is  the  President  the 
sole  and  exclusive  judge  whether  the  exigency  has  arisen, 
or  is  it  to  be  considered  as  an  open  question  ?  May  every 
officer  and  every  soldier  to  whom  the  orders  of  the  Presi- 
dent are  addressed,  decide  to  refuse  or  obey  such  orders? 

If  we  look  at  the  language  of  the  act  of  1795,  every 
conclusion  drawn  from  the  nature  of  the  power  itself  is 
strongly  fortified.  The  words  are,  "whenever  the  United 
States  shall  be  invaded,  or  be  in  imminent  danger  of 
invasion,  ...  it  shall  be  lawful  for  the  President,  .  .  . 
to  call  forth  such  number  of  the  militia,  ...  as  he  may 
judge  necessary  to  repel  such  invasion."  The  power 
itself  is  confined  to  the  executive  of  the  Union,  to  him 
who  is,  by  the  Constitution,  the  commander  in  chief  of 
the  militia,  when  called  into  the  actual  service  of  the 
United  States,  "whose  duty  it  is  'to  take  care  that  the 
laws  be  faithfully  executed,'  "  and  whose  responsibility 
for  an  honest  discharge  of  his  official  obligations  is  se- 


100  CONGRESS. 

cured  by  the  highest  sanction.  He  is  necessarily  con- 
stituted the  judge  of  the  existence  of  the  exigency  in  the 
first  instance,  and  is  bound  to  act  according  to  his  be- 
lief of  the  facts.  If  he  does  act,  and  decides  to  call  forth 
the  militia,  his  orders  for  this  purpose  are  in  strict  con- 
formity with  the  provisions  of  the  law  and  it  would  seem 
to  follow,  as  a  necessary  consequence,  that  every  act  done 
by  a  subordinate  officer,  in  obedience  to  such  orders,  is 
equally  justifiable.  The  law  contemplates  that,  under  such 
circumstances,  orders  shall  be  given  to  carry  the  power 
into  effect;  and  it  can  not  therefore  be  correct  inference 
that  any  other  person  has  a  right  to  disobey  them.  The 
law  does  not  provide  for  any  appeal  from  the  judgment 
of  the  President,  or  for  any  right  in  subordinate  officers 
to  review  his  decision,  and  in  effect  defeat  it.  Whenever 
a  statute  gives  a  discretionary  power  to  any  person,  it  is  to 
be  exercised  by  him  upon  his  own  opinion  of  certain  facts. 
In  the  present  case  we  are  all  of  the  opinion  that  such 
is  the  true  construction  of  the  act  of  1795.  It  is  no  answer 
that  such  a  power  may  be  abused,  for  there  is  no  power 
which  is  not  susceptible  of  abuse.  The  remedy  for  this, 
as  well  as  for  other  official  misconduct,  if  it  should  occur, 
is  to  be  found  in  the  Constitution  itself.  In  a  free  gov- 
ernment, the  danger  must  be  remote,  since  in  addition  to 
the  high  qualities  which  the  executive  must  be  presumed 


CONGRESS.  lOI 

to  possess  of  public  virtue,  and  honest  devotion  to  the 
pubHc  interests,  the  frequency  of  elections,  and  the  watch- 
fulness of  the  representatives  of  the  nation,  carry  with 
them  all  the  checks  which  can  be  useful  to  guard  against 
usurpation  or  wanton  tyranny.' 

'  Martin  v.  Mott,  12  Wheat.  19,  7  Curtis  10. 


THE  PRESIDENT 


THE  PRESIDENT 


ARTICLE  III. 

"The  executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America." — Art.  II,  Sec.  i,  U.  S.  Constitution. 

Section  30.  The  constitutional  provision  created  the 
office  of  the  President  of  the  United  States.  It  vested  at 
the  same  instance  the  entire  executive  power  in  a  single 
individual.  The  head  of  the  executive  of  the  American 
nation  "shall  hold  his  office  during  the  term  of  four  years 
and  together  with  the  Vice-President,  chosen  for  the 
same  term." 

President  and  Vice-President  must  be  "a  natural  born 
citizen  or  a  citizen  of  the  United  States,  who  has  attained 
the  age  of  thirty-five  years";  and  a  naturalized  citizen 
shall  be  ineligible  to  that  office.  The  President  of  the 
United  States,  the  strictest  creature  of  the  constitutional 
nomenclature,  is  not  obnubilated  behind  the  mysterious 
obscurity  of  counsellors.  Power  is  communicated  to  him 
with  liberality,  though  with  ascertained  limitations.  To 
him  the  provident  or  improvident  use  of  it  is  to  be  as- 
cribed. For  the  first,  he  will  have  and  deserve  undivided 
applause.    For  the  last,  he  will  be  subject  to  censure;  if 

107 


I08  THE    PRESIDENT. 

necessary,  to  punishment.  He  is  a  dignified  but  accountable 
magistrate  of  a  free  and  great  people.  The  tenure  of  his 
office,  it  is  true,  is  not  hereditary;  nor  is  it  for  life;  but 
still  it  is  a  tenure  of  the  noblest  kind ;  by  being  a  man  of 
the  people,  he  is  invested ;  by  continuing  to  be  a  man  of 
the  people,  his  investiture  will  be  voluntarily  and  cheer- 
fully and  honorably  renewed.' 

But,  as  to  the  investiture  of  renewal,  there  is  a  time- 
honored  precedent,  philosophised  to  it  the  unwritten  un- 
derstanding of  the  Presidential  constitution.  This  prece- 
dent was  set  forth  by  George  Washington,  the  first  Presi- 
dent. To  quote  his  own  language :  "The  period  for  a  new 
election  of  a  citizen  to  administer  the  executive  govern- 
ment of  the  United  States  being  not  far  distant,  and  the 
time  actually  arrived  when  your  thoughts  must  be  em- 
ployed in  designating  the  person  who  is  to  be  clothed  with 
that  important  trust,  it  appears  to  me  proper,  especially  as 
it  may  conduce  to  a  more  distinct  expression  of  the  public 
virtue,  that  I  should  now  appraise  you  of  the  resolution 
I  have  formed  to  decline  being  considered  among  the 
members  of  those  out  of  whom  a  choice  is  to  be  made. 

"The  acceptance  of,  and  continuance  hitherto  in,  the 

office  to  which  your  suffrages  have  twice  called  me,  have 

been  a  uniform  sacrifice  of  inclination  to  the  opinion  of 

duty,  and  to  a  deference  for  what  appeared  to  be  your 

*  Wilson's    work,    400. 


THE    PRESIDENT.  lOQ 

desire.  I  constantly  hoped  that  it  would  have  been 
much  earlier  in  my  power,  consistently  with  motives 
which  I  was  not  at  liberty  to  disregard,  to  return  to  that 
retirement  from  which  I  had  been  reluctantly  drawn. 
The  strength  of  my  inclination  to  do  this,  previous  to 
the  last  election,  had  even  led  to  the  preparation  of  an 
address  to  declare  it  to  you;  but  mature  reflection  on 
the  then  perplexed  and  critical  posture  of  our  affairs  with 
foreign  nations  and  unanimous  advice  of  persons  en- 
titled to  my  confidence  impelled  me  to  abandon  the  idea."  ^ 
The  American  Constitution  is  silent  as  to  the  eligibility 
of  women  for  the  office  of  President.  As  the  letters  of 
the  constitutional  provisions  stand,  the  masculine  pro- 
noun "he,"  representing  the  President,  indicates  that  the 
person  of  presidential  eligibility  may  be  of  the  male  line, 
otherwise,  the  feminine  President  may  become  the  matter 
of  possibility.  There  are  some  among  the  American 
women  who  are  advancing  from  a  grade  of  develop- 
ment where  they  were  only  capable  of  loving  and  serving 
their  own  immediate  relations,  to  a  grade  where  they 
really  care  about  their  city,  State,  and  country.  They 
seem  to  realize  that  the  world's  mothers  must  not  only 
bear  and  rear  good  and  healthy  sons  and  daughters,  but 
must  help  and  make  good  and  healthy,  all  the  sons  and 
daughters  of  mankind. 

^  Washingfton's  Farwell  Address. 


no  THE    PRESIDENT. 

In  the  United  States,  in  case  of  the  removal  of  the  Pres- 
ident from  office,  or  of  his  death,  resignation,  or  inability 
to  discharge  the  powers  and  duties  of  the  office  the  same 
shall  devolve  on  the  Vice-President,  and  the  Congress  by 
by-laws  provides  for  the  case  of  both  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as  Presi- 
dent until  the  disability  be  removed,  or  a  President  shall 
be  elected.  When  the  President  is  elected  he  shall  before 
entering  upon  the  duties  of  his  office  take  an  oath,  de- 
claring "I  do  solemnly  swear  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to 
the  best  of  my  ability,  preserve,  protect  and  defend  the 
Constitution  of  the  United  States." 

Sec.  31.  Under  the  Constitution,  the  President  is  the 
commander-in-chief  of  the  army  and  navy  of  the  United 
States,  and  the  militia  of  the  several  States  when  they  are 
called  into  actual  service  of  the  United  States.  Standing 
alone,  the  constitutional  provision  invested  in  the  Presi- 
dent the  final  and  supreme  power  to  declare  martial  law, 
confiscate  and  condemn  or  forfeit  what  belongs  to  be- 
ligerents  and  enemies.  In  the  same  constitutional  pro- 
vision the  President  is  empowered  to  require  the  opinion, 
in  writing,  of  the  principal  officer  or  head  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices.  In  the  United  States 
the  President  may,  according  to  usages  and  customs, 


THE    PRESIDENT.  Ill 

call  the  principal  officer  or  commonly  called  Secretary 
of  each  department,  together  to  carry  on  the  important 
aflfairs  of  the  executive,  which  gathering  is  also  called  a 
Cabinet  Meeting.  However,  the  understanding  of  the 
American  cabinet,  the  powers  and  duties  of  its  members, 
is  apparently  different  from  that  under  King  or  Em- 
peror. The  cabinet  members  are  the  mere  executive 
agents  and  any  official  act  done  by  them  or  one  of  them 
in  the  legal  contemplation  is  done  by  the  President,  and 
the  responsibility  is,  not  upon  the  cabinet  members,  but 
upon  the  President  himself. 

Sec.  32.  The  responsibility  of  the  executive  is  for  the 
people  to  institute  against.  The  Constitution  and  laws 
made  in  pursuance  to  the  Constitution  will  enact  such  re- 
sponsibility. The  Constitution  declares  that  the  Presi- 
dent, Vice-President  and  all  civil  officers  of  the  United 
States  are  liable  to  the  processes  of  removal  and  punish- 
ment; and  invested  in  the  House  of  Representatives  the 
sole  power  of  impeachment,  and  in  the  Senate  the  sole 
power  to  try  its  presentments.  When  the  President  is 
tried  the  Chief  Justice  of  the  Supreme  Court  shall  pre- 
side. President  Johnson  was  acquitted  by  one  less  vote 
than  the  concurrence  of  two-thirds  of  the  members. 
Judgment  in  case  of  impeachment  shall  not  extend 
further  than  to  the  removal  from  office  and  disqualifi- 
cation to  hold  and  enjoy  any  office  of  honor,  trust  or 


112  THE    PRESIDENT. 

profit  under  the  United  States.  But  the  party  convicted 
shall  nevertheless  be  liable,  and  subject  to  indictment, 
trial,  judgment  and  punishment  according  to  law.  As 
to  the  words  "civil  officers"  in  the  constitutional  pro- 
vision, they  may  be  construed  as  all  officers  who  hold 
their  office  under  the  national  government,  irrespective 
of  the  department,  but  it  rests  with  the  Senate,  as  a  court 
of  last  resort,  to  decide  who  are  included  within  that 
designation.  The  President's  power  to  grant  reprieves 
and  pardons  does  not  extend  to  impeachment. 

Sec.  33.  The  Constitution  empowers  the  President 
to  grant  reprieves  and  pardons  for  offences  against  the 
United  States  except  in  cases  of  impeachment.  Under 
this  power  the  President  has  granted  reprieves  and  par- 
dons since  the  beginning  of  the  American  government. 
No  statute  has  ever  been  passed  regulating  it  in  cases 
of  conviction  by  the  civil  authority;  the  President  has 
exercised  the  specific  power  in  such  cases. 

The  word  "pardon"  does  not  mean  either  in  the  com- 
mon parlance  or  in  the  legal  contemplation  an  absolute 
pardon,  exempting  a  criminal  from  the  punishment  which 
the  law  infiicts  for  a  crime  he  has  committed.  It  means, 
in  the  language  of  Justice  Wayne,  "forgiveness,  release, 
remission.  Forgiveness  for  an  offence,  whether  it  be 
one  for  which  the  person  committing  it  is  liable  in  the 
law  or  otherwise.     Release  from  pecuniary  obligation, 


THE    PRESIDENT.  II3 

as  where  it  is  said,  I  pardon  you  your  debt,  or  it  is  the 
remission  of  a  penalty  to  which  one  may  have  subjected 
himself  by  the  non-performance  of  an  undertaking  or 
contract,  or  when  a  statutory  penalty  as  money  has  been 
incurred,  and  it  is  remitted  by  a  public  functionary  hav- 
ing power  to  remit  it.  In  the  law  it  has  different  mean- 
ings, which  were  as  well  understood  when  the  Constitution 
was  made  as  any  other  legal  word  in  the  Constitution 
now  is."* 

It  was  with  the  fullest  knowledge  of  the  law  upon 
the  subject  of  pardons,  and  the  philosophy  of  govern- 
ment in  its  bearing  upon  the  Constitution,  when  the 
Supreme  Court  instructed  Chief  Justice  Marshall  to  say 
"that  the  power  has  been  exercised  from  time  im- 
memorial by  the  executive  of  that  nation  whose  language 
is  our  language,  and  to  whose  judicial  instructions  ours 
bear  a  close  resemblance,  we  adopt  their  principles  re- 
specting the  operation  and  effect  of  a  pardon,  and  look 
into  their  books  for  the  rules  prescribing  the  manner  in 
which  it  is  to  be  used  by  the  person  who  would  avail  him- 
self of  it."  The  understanding  of  this  construction  has 
ever  since  been  accepted  and  the  important  cases  which 
followed  it  embodied  the  same  philosophy  of  it.' 

Pardon  is  said  by  Lord  Coke  to  be  a  work  of  mercy, 

'  Ex  parte  Wells,  18  How.  307. 

'U.  S.  V.  Wilson,  7  Pet.  162. 

'  Cathcart  v.  Robinson,  5  Pet.  264. 


114  THE    PRESIDENT. 

whereby  the  King  either  before,  attainds  sentence  or  con- 
viction, or  after,  forgiving  any  crime,  offence,  punish- 
ment, execution,  right,  title,  debt,  or  duty,  temporal  or 
ecclesiastical ;  the  King's  coronation  oath  is,  "that  he  will 
cause  justice  to  be  executed  in  mercy."  It  is  frequently 
conditional,  as  he  may  extend  his  mercy  upon  what  terms 
he  pleases,  and  annex  to  his  bounty  a  condition  precedent 
or  subsequent,  on  the  performance  of  which  validity  of 
the  pardon  will  depend.  And  if  the  felon  does  not 
perform  the  condition  of  the  pardon,  it  will  be  altogether 
void;  and  he  many  be  brought  to  the  bar  and  made  to 
suffer  the  punishment  to  which  he  was  originally  sen- 
tenced. But  in  the  meantime  we  must  make  it  understood 
that  the  King  cannot,  by  any  previous  license,  make  an 
offence  dispunishable  which  is  malum  in  se,  that  is,  unlaw- 
ful itself  as  being  against  the  law  of  nature,  common 
good,  common  law,  reason  and  public  good. 

"This  power  to  pardon,"  says  the  Supreme  Court,  "has 
also  been  restrained  by  particular  statutes.  By  the  Act 
of  Settlement,  12  and  13  Will,  iii  c.  2,  Eng.,  no  pardon 
under  the  great  seal  is  pleadable  to  an  impeachment  by 
the  Commons  in  Parliament,  but  after  the  articles  of  im- 
peachment have  been  heard  and  determined,  he  may  par- 
don. The  provision  in  our  Constitution,  except  in  cases 
of  impeachment  out  of  the  power  of  the  President  to 


PRESIDENTS    OF    THE    UNITED    STATES 


10th  Pres. 
■.i\  Pres. 
iKKCK,  nth   Pres. 
4.  Zachaby  Taylor,  lUth  Pres. 

12.  Andrew  jAtKSdN, 


1.  John  Tyler, 

2.  .John  Adams, 

3.  Franklin  Pi 


T>.  Thomas  Jefferson,  Snl  Pres.  !•.  John  Qi-incy  Adams,  tith  Pres. 

K.  James  Madison,  4th  Pres.  10.  James  Monroe,  5th  Pres. 

7.  fJEoKGE  \\'ASHiN(iroN,  iKt  Pres.  11.  William    Henry    Harrison, 

s.  Jamk.s  K.  Polk.  11th  Pres.  nth   Pres. 

7th  Pres.  13.  Martin  Van  Biren,  sth  Pres. 


THE    PRESIDENT.  II7 

pardon,  was  evidently  taken  from  that  statute,  and  is  an 
improvement  upon  the  same.'" 

As  to  the  reprieves,  the  same  court  makes  us  to  un- 
derstand that  that  is  not  only  to  be  used  to  delay  a 
judicial  sentence  when  the  President  shall  think  the  merits 
of  the  case,  or  some  cause  connected  with  the  offender 
may  require  it,  but  it  extends  also  to  cases  ex  necessitate 
legis,  as  where  a  female  after  conviction  is  found  to  be 
enceinte,  or  where  a  convict  becomes  insane,  or  is  al- 
leged to  be  so.  Though  the  reprieve  in  either  case  pro- 
duces delay  in  the  execution  of  a  sentence,  the  means  to 
be  used  to  determine  either  of  the  two  just  mentioned, 
are  clearly  within  the  President's  power  to  direct;  and 
reprieves  in  such  cases  are  different  in  their  legal  charac- 
ter, and  different  as  to  the  causes  which  may  induce  the 
exercise  of  the  power  to  reprieve. 

In  conclusion  of  the  specific  power  of  the  President  to 
grant  pardon  we  herein  cite  the  philosophy  of  the  un- 
written understanding  of  it,  in  quoting  the  language  of 
Justice  Field :  "It  extends  to  every  office  known  to  law, 
and  may  be  exercised  at  any  time  after  its  commission, 
either  before  legal  proceedings  are  taken,  or  during  their 
pendency,  or  after  conviction  and  judgment.  This  power 
of  the  President  is  not  subject  to  the  legislatures'  control. 
Congress  can  neither  limit  the  effect  of  his  pardon,  nor 
^Ex  parte  Wells,  11  Howard  307. 


Il8  THE    PRESIDENT. 

exclude  from  its  exercise  any  class  of  offenders.  The 
benign  prerogative  of  mercy  reposed  in  him  can  not  be 
fetted  by  any  legislative  restriction.  Such  being  the  case, 
the  inquiry  arises  as  to  the  effect  and  operation  of  a  par- 
don, and  on  this  point  all  the  authorities  concur.  A  par- 
don reaches  both  the  punishment  prescribed  for  the  of- 
fence and  the  guilt  of  the  offender ;  and  when  the  pardon 
is  full,  it  releases  the  punishment  and  blots  out  of  ex- 
istence the  guilt,  so  that  in  the  eyes  of  the  law  the  offender 
is  as  innocent  as  if  he  had  never  committed  the  offence. 
If  granted  before  conviction,  it  prevents  any  of  the  pen- 
alties and  disabilities  which  follow  conviction;  if  granted 
after  conviction,  it  removes  the  penalties  and  disabilities, 
and  restores  him  to  all  his  civil  rights;  it  makes  him  as 
it  were,  a  new  man,  and  gives  him  new  credit  and  capac- 
ity. There  is  only  this  limitation  to  its  operation,  it  does 
not  restore  offices  forfeited,  or  property  or  interest  vested 
in  others  in  consequence  of  the  conviction  and  judg- 
ment." ^ 

Sec.  34.  The  President  of  the  United  States  is  also  em- 
powered by  the  Constitution,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senators  present  concur. 

As  was  said  by  Chief  Justice  Marshall  {The  Peggy 
I  Cranch.  103,  no)  :    "Where  a  treaty  is  the  law  of  the 

*Ex  parte   Garland,   4  Wall.   2Z2-     4   Bl.   Com.   402.     6   Bacon's 
Abrig.,  tit.  Pardon.    Hawkins,  Book  2,  c.  27>  34  and  54. 


THE    PRESIDENT.  1 19 

land,  and  as  such  affects  the  rights  of  parties  litigating 
in  court,  that  treaty  as  much  binds  those  rights,  and  is 
as  much  to  be  regarded  by  the  courts  as  an  act  of  Con- 
gress." And  in  Whitney  v.  Robertson  (124  U.  S.  190)  : 
"By  the  Constitution  a  treaty  is  placed  on  the  same  foot- 
ing, and  made  of  like  obligation,  with  an  act  of  legisla- 
tion. Both  are  declared  by  that  instrument  to  be  the  su- 
preme law  of  the  land,  and  no  superior  efficacy  is  given 
to  either  over  the  other.  When  the  two  relate  to  the 
same  subject,  the  courts  will  always  endeavor  to  construe 
them  so  as  to  give  effect  to  both,  if  that  can  be  done  with- 
out violating  the  language  of  either;  but  if  the  two  are 
inconsistent,  the  one  last  in  date  will  control  the  other, 
provided  always  that  the  stipulation  of  the  treaty  on  the 
subject  is  self-executing."  To  the  same  effect  are  the 
Cherokee  Tobacco  (11  Wall.  616)  and  the  Head  Money 
cases  (112  U.  S.  580). 

One  of  the  ordinary  incidents  of  a  treaty  is  the  cession 
of  territory.  It  is  not  too  much  to  say  it  is  the  rule, 
rather  than  the  exception,  that  a  treaty  of  peace,  follow- 
ing upon  a  war,  provides  for  a  cession  of  territory  to  the 
victorious  party.  It  was  said  by  Chief  Justice  Marshall 
in  American  Ins.  Co.  v.  Canter  (i  Pet.  511,  542)  :  "The 
Constitution  confers  absolutely  upon  the  government  of 
the  Union  the  powers  of  making  war  and  of  making 
treaties ;  consequently  that  government  possesses  the  pow- 


120  THE    PRESIDENT. 

er  of  acquiring  territory,  either  by  conquest  or  by  treaty." 
The  territory  thus  acquired  is  acquired  as  absolutely  as 
if  the  annexation  were  made,  as  in  the  case  of  Texas  and 
Hawaii,  by  an  act  of  Congress. 

It  follows  from  this  that  by  the  ratification  of  the  treaty 
of  Paris  the  island  became  the  territory  of  the  United 
States — although  not  an  organized  territory  in  the  tech- 
nical sense  of  the  word. 

It  is  true  Mr.  Chief  Justice  Taney  held  in  Scott  v. 
Sanford  (19  How.  393),  that  the  territorial  clause  of 
the  Constitution  was  confined,  and  intended  to  be  con- 
fined, to  the  territory  which  at  that  time  belonged  to  or 
was  claimed  by  the  United  States,  and  was  within  their 
boundaries,  as  settled  by  the  treaty  with  Great  Britain; 
and  was  not  intended  to  apply  to  territory  subsequently 
acquired.  He  seemed  to  differ  in  this  construction  from 
Chief  Justice  Marshall  in  the  American,  etc.,  Ins.  Co.  v. 
Canter  (i  Pet.  511,  542)  who,  in  speaking  of  Florida 
before  it  became  a  State,  remarked  that  it  continued  to 
be  a  territory  of  the  United  States,  governed  by  the  ter- 
ritorial clause  of  the  Constitution. 

But  whatever  be  the  source  of  this  power,  its  unin- 
terrupted exercise  by  Congress  for  a  century,  and  the 
repeated  declarations  of  this  court,  have  settled  the  law 
that  the  right  to  acquire  territory  involves  the  right  to 
govern  and  dispose  of  it.     That  was  stated  by  Chief 


THE    PRESIDENT.  121 

Justice  Taney  in  the  Dred  Scott  case.  In  the  more 
recent  case  of  the  National  Bank  v.  County  of  Yank- 
ton, (loi  U.  S.  129),  it  was  said  by  Mr.  Chief  Jus- 
tice Waite  that  Congress  "has  full  and  complete  leg- 
islative authority  over  the  people  of  the  territories  and  all 
of  the  departments  of  the  territorial  governments.  It 
may  do  for  the  territories  what  the  people,  under  the 
Constitution  of  the  United  States,  may  do  for  the  States." 
Indeed,  it  is  scarcely  too  much  to  say  that  there  has  not 
been  a  session  of  Congress  since  the  Territory  of  Louis- 
iana was  purchased  that  that  body  has  not  enacted  legis- 
lation based  upon  the  assumed  authority  to  govern  and 
control  the  territories.  It  is  an  authority  which  arises,  not 
necessarily  from  the  territorial  clause  of  the  Constitution, 
but  from  the  necessities  of  the  case,  and  from  the  inabil- 
ity of  the  States  to  act  upon  the  subject.  Under  this 
power  Congress  may  deal  with  territory  acquired  by 
treaty;  may  administer  its  government  as  it  does  that  of 
the  District  of  Columbia;  it  may  organize  a  local  terri- 
torial government;  it  may  admit  it  as  a  State  upon  an 
equality  with  other  States ;  it  may  sell  its  public  lands  to 
individual  citizens  or  may  donate  them  as  homesteads  to 
actual  settlers.  In  short,  when  once  acquired  by  treaty,  it 
belongs  to  the  United  States,  and  is  subject  to  the  dis- 
position of  Congress.* 

^  The  Insular  Tariff  Cases. 


122  THE    PRESIDENT. 

A  treaty  is,  in  its  nature,  a  contract  between  two  na- 
tions, not  a  legislative  act.  It  does  not  generally  effect, 
of  itself,  the  object  to  be  accomplished,  especially  so  far 
as  its  operation  is  infra-territorial ;  but  is  carried  into 
execution  by  the  sovereign  power  of  the  respective  part- 
ies to  the  instrument.  In  the  United  States  a  different 
principle  is  established.  It  is,  consequently,  to  be  regarded 
in  courts  of  justice  as  equivalent  to  an  act  of  the  legisla- 
ture whenever  it  operates  without  the  aid  of  any  legisla- 
tive provision.  But  when  the  terms  of  the  stipulation  im- 
port a  contract,  that  is  when  either  of  the  parties  engage 
to  perform  a  particular  act,  the  treaty  addresses  itself  to 
the  political,  not  the  judicial  department;  and  the  legis- 
lature must  execute  the  contract  before  it  can  become  a 
rule  for  the  court.' 

Viewing  the  treaty,  which  operates  with  regard  to  the 
individual  rights,  Justice  Davis,  in  the  case  of  Haver  v. 
Yaker,  said  that  in  this  country,  a  treaty  is  something 
more  than  a  contract,  for  the  Federal  Constitution  de- 
clares it  to  be  the  law  of  the  land.  If  so  before  it  becomes 
a  law,  the  Senate,  in  whom  rests  the  authority  to  ratify  it, 
must  agree  to  it.  But  the  Senate  is  not  required  to 
adopt  or  reject  it  as  a  whole,  but  may  modify  or  amend 
it,  as  was  done  with  the  treaty  under  consideration.  As 
the  individual  citizen  on  whose  rights  of  property  it  op- 
'  Foster  v.  Neilson,  2  Pet.  253. 


THE  PRESIDENT.  1 23 

erates,  has  no  means  of  knowing  anything  of  it  while 
before  the  Senate,  it  would  be  wrong  in  principle,  to 
hold  him  bound  by  it,  as  the  law  of  the  land,  until  it  was 
ratified  and  proclaimed.  And  to  construe  the  law  so  as 
to  make  the  ratification  of  the  treaty  relate  back  to  its 
signing,  would  be  manifestly  unjust,  and  can  not  be 
sanctioned.' 

Sec.  35.  Question  as  to  a  conflict  between  an  act  of 
Congress,  and  a  treaty  in  force  when  the  act  was  passed ; 
the  act  of  Congress  must  prevail  in  a  judicial  forum.* 
In  support  of  the  unwritten  understanding  of  it, 
Justice  Miller,  in  Head  Money  cases,  had  then  to  say 
that  a  treaty  is  made  by  the  President  and  the  Senate. 
Statutes  are  made  by  the  President,  the  Senate  and  the 
House  of  Representatives.  The  addition  of  the  latter 
body  to  the  other  two  in  making  a  law  certainly  does  not 
render  it  less  entitled  to  respect  in  the  matter  of  its  re- 
peal or  modification  than  a  treaty  made  by  the  other  two. 
If  there  is  any  difference  in  this  regard,  it  would  seem  to 
be  in  favor  of  an  act  in  which  all  three  of  the  bodies  par- 
ticipate. And  such  is,  in  fact,  the  case  in  a  declaration 
of  war,  which  must  be  made  by  Congress,  and  which 
when  made,  usually  suspends  or  destroys  existing  treat- 
ies between  the  nations  thus  at  war.  In  short,  we  are 
of  the  opinion  that,  so  far  as  a  treaty  made  by  the  United 

'  Haver  v.  Yaker,  9  Wallace  32. 

*  Taylor  v.  Morton,  2  Curtis,  454.     Ah  Lung,  18  Fed.  Rep.  28. 


124  THE  PRESIDENT. 

States  with  any  foreign  nation  can  become  the  subject  of 
judicial  cognizance  in  the  courts  of  this  country,  it  is 
subject  to  such  acts  as  Congress  may  pass  for  its  en- 
forcement, modification  or  repeal.' 

Sec.  36.  Always  keeping  in  view  of  the  judicial  un- 
derstanding in  the  case  of  conflict  between  the  treaty  and 
the  act  of  Congress,  let  us  inquire  into  what  is  the  under- 
standing with  regard  to  a  conflict  between  the  treaty  pro- 
vision and  the  State  statutory  provision.  "As  com- 
mercial intercourse  increases  between  different  countries," 
says  Justice  Field,  "the  residence  of  citizens  of  one  coun- 
try within  the  territory  of  the  other  naturally  follows, 
and  the  removal  of  their  disability  from  allegiance  to 
hold,  transfer,  and  inherit  property  in  such  cases  tends  to 
promote  amicable  relations.  Such  removal  has  been  with- 
in the  present  century  the  frequent  subject  of  treaty 
arrangement.  The  treaty  power,  as  expressed  in  the 
Constitution,  is  in  terms  unlimited,  except  by  those  re- 
straints which  are  found  in  that  instrument  against  the 
action  of  the  government  or  of  its  departments,  and  those 
arising  from  the  nature  of  the  government  itself  and  of 
that  of  the  States.  But  with  these  exceptions,  it  is  not 
perceptible  that  there  is  any  limit  to  the  questions  which 
can  be  adjusted  touching  any  matter  which  is  properly 
the   subject   of   negotiation   with   a   foreign   country.'"' 

'Head  Money  Cases,  112  U.  S.  580. 
^Geofroy  v.  Riggs,  133  U.  S.  258. 


PRESIDENTS    OF    THE    UNITED    STATES 


RuTHKRFOHD  B.  Havfs,  littli  Pres. 
CHtsTKR  A.  Arthur,  21st  Pres. 
Bknjamin  Harrison,  -Srd  Pres. 
Arraham  Lincoln,  16th  Pres. 
Theodork  Roosevelt,  26th  Pres. 
James  A.  Garfield,  2»ith  Pres. 


(Jrover  Cleveland,   22tl  an(i  2-lth  Pres. 
William  McKinlev,  25th  Pres. 
tJL^  ssKs  S.  Grant,  18th  Pres. 
Andrew  Johnson,  17th  Pres. 
Jamks  Bl'lhanan,  I'lth  Pres. 
Millard  Fillmore,  Kith  Pres. 


THE    PRESIDENT.  IT.'J 

When  arriving  at  this  understanding  of  the  power  of  the 
Federal  Government  we  are  naturally  confronted  with 
the  question  as  to  whether  the  Federal  Government  is  to 
control  the  internal  policy  of  the  States,  which  was  often 
the  case  since  the  commencement  of  this  constitutional 
government/ 

The  Supreme  Court  of  the  State  of  California  in- 
structed Judge  Heydenfeldt  to  say  when  the  policy  and 
State  statutory  provisions  were  in  jeopardy  under  the 
treaty,  being  made  by  the  Federal  power.  "Now,  as  by 
the  compact  the  States  are  absolutely  prohibited  from 
making  treaties,  if  the  general  government  has  not  the 
power,  then  we  must  admit  a  lameness  and  incomplete- 
ness in  our  whole  system,  which  renders  us  inferior  to 
any  other  enlightened  nation,  in  the  power  and  ability  to 
advance  the  prosperity  of  the  people  we  govern.  Mr. 
Calhoun,  in  his  discourse  on  the  Constitution  and  govern- 
ment of  the  United  States,  has  given  to  this  power  a  full 
consideration,  and  I  cannot  doubt  that  the  view  which  I 
have  taken  is  sustained  by  his  reasoning  according  to  his 
opinion,  the  following  may  be  classed  as  the  limitations 
on  the  treaty  making  power :  First,  it  is  limited  strictly 
to  questions  inter  alias,  'all  such  clearly  appertain  to  it.' 
Second,  'by  all  the  provisions  of  the  Constitution  which 
prohibit  certain  acts  to  be  done  by  the  government  or  any 

^  Opel  V.  Shoup,  100  Iowa  407.  Wunderle  v.  Wunderle,  144  111. 
40.    Hauenstein  v.  Lynham,  100  U.  S.  483. 


128  THE   PRESIDENT. 

of  its  departments.'  Third,  'by  such  provisions  of  the 
Constitution  as  direct  certain  acts  to  be  done  in  a  par- 
ticular way,  and  which  prohibit  the  contrary.'  Fourth, 
'it  can  enter  into  no  stipulation  calculated  to  change  the 
character  of  the  government,  or  to  do  that  which  can  only 
be  done  by  the  Constitution  making  power;  or  which  is 
inconsistent  with  the  nature  and  structure  of  the  gov- 
ernment or  the  objects  for  which  it  was  found.'  Even  if 
this  power  was  to  abrogate  to  some  extent  the  legisla- 
tion of  the  States,  we  have  authority  for  admitting  it,  if 
it  does  not  exceed  the  limitations  which  we  have  cited 
from  the  work  of  Mr.  Calhoun,  and  laid  down  as  the  rule 
to  which  we  yield  our  assent.  I  see  no  danger  which  can 
result  from  yielding  to  the  Federal  Government  the  full 
extent  of  the  power  which  it  may  claim  from  the  plain 
language,  intent  and  meaning  of  the  grant  under  consid- 
eration, upon  some  subjects,  and  the  policy  of  foreign 
governments  would  be  readily  changed  upon  the  princi- 
ples of  mutual  concession.  This  can  only  be  affected  by 
the  action  of  that  branch  of  the  States  sovereignty  known 
as  the  general  government,  and  when  effected,  the  State 
policy  must  give  way  to  that  adopted  by  the  governmental 
agent  for  her  foreign  relations."' 

Sec.  37.  The  President  is  directed  to  send  from  time  to 
time  such  message  to  Congress  or  in  the  language  of  the 
'  People,  ex  Rel.    The  Attorney-General  v,  Gerke,  5  Cal.  381. 


THE    PRESIDENT.  I29 

Constitution,  "information  of  the  State  of  the  Union." 
He  may  on  extra  occasions  convene  both  Houses  or  either 
of  them,  and  in  case  of  disagreement,  he  may  adjourn 
them  to  such  a  time  as  he  thinks  proper.  Such  inter- 
ferences on  the  part  of  the  President  are  justified  accord- 
ing to  the  circumstances  of  the  case.  He  also  has  power 
to  veto  such  bills  passed  by  the  two  Houses  before  it  shall 
become  a  law.  When  he  vetoes  a  bill  he  must  return  it 
with  his  objections  to  the  House  in  which  it  originated. 
If  the  House  reconsiders  the  bill  and  passes  it  by  two- 
thirds  of  that  House  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House;  if  again  approved  by 
two-thirds  of  that  House  it  shall  become  a  law  over  the 
President's  veto.  However,  any  bill  shall  not  be  re- 
turned by  the  President  within  ten  days — Sunday  ex- 
cepted— after  it  shall  have  been  presented  to  him,  it  will 
become  a  law  in  like  manner  as  if  he  had  signed  it,  unless 
the  Congress,  by  their  adjournments,  prevents  its  return. 
All  orders,  resolutions,  and  votes  to  which  the  assent  of 
both  Houses  may  be  necessary,  except  on  a  question  of 
adjournment,  must  take  the  course  of  bills.' 

Sec.  38.  The  President  has,  under  the  Constitution, 
power,  by  and  with  the  advice  and  consent  of  the  Sen- 
ate to  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other 
'Art.  I,  Sec.  7,  Cls.  2,  3,  Const. 


130  THE    PRESIDENT. 

officers  of  the  United  States  whose  appointments  are  not 
in  the  Constitution  otherwise  provided  for,  and  which 
shall  be  established  by  law ;  but  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers  in  the  President 
alone  in  the  courts  of  law,  or  in  the  heads  of  the  de- 
partment. 

Of  all  the  particular  powers  that  are  implied  in  this 
provision  of  the  Constitution,  the  most  conspicuous  one 
is  that  prerogative  of  the  President  with  regard  to  the 
removal  of  the  officer  who  was  appointed  in  concurrence 
with  the  Senate.  Alexander  Hamilton,  in  defence  for 
the  adoption  of  the  Constitution  had  advanced  the  pre- 
liminary understanding  of  this  specific  prerogative.  He 
says  that  "it  has  been  mentioned  as  one  of  the  advantages 
to  be  expected  from  the  co-operation  of  the  Senate,  the 
business  of  appointments,  that  it  would  contribute  to 
the  stability  of  the  administration.  The  consent  of  that 
body  would  be  necessary  to  displace  as  well  as  to  appoint." 
However,  after  the  adoption,  Mr.  Madison  championed 
the  opinion  of  a  decided  majority  in  the  first  session  of 
the  first  House  of  Representatives  in  1783  which  had 
not  only  changed  the  preliminary  understanding  of  the 
prerogative  but  also  enlarged  it.  In  Mr.  Madison's  own 
language,  "Executive  should  have  power  of  independ- 
ent removal,  whether  already  derived  from  the  Consti- 
tution or  to  be  conferred  by  supplementary  legislation." 


THE    PRESIDENT.  I3I 

The  debate  arose  upon  the  clause  in  a  pending  bill  pro- 
viding that  the  officer  therein  named  should  "be  remov- 
able by  the  President."  The  bill  thus  passed  was  sent  to 
the  Senate,  where  it  was  completed.  Madison's  declar- 
ation then  and  since  then,  attaches  a  great  bearing  upon 
the  officer  of  the  Executive  head,  when  he  said:  "I 
feel  the  importance  of  the  question,  and  know  that  our 
decision  will  involve  the  decision  of  all  similar  cases  and 
that  the  decision  that  is  at  this  time  made  will  become 
the  prominent  exposition  of  the  Constitution." 

The  specific  understanding  of  the  President's  pre- 
rogative to  remove  Federal  officers  without  the  partici- 
pation or  interference  of  the  Senate,  was  afterwards  au- 
thenticated by  the  Supreme  Court  of  the  United  States: 
"No  one  denied  the  power  of  the  President  and  Senate 
jointly  to  remove,  where  the  tenure  of  the  office  was  not 
fixed  by  the  Constitution;  which  was  a  full  recognition 
of  the  principle  that  the  power  of  removal  was  incident 
to  the  power  of  appointment.  But  it  was  very  early 
adopted,  as  the  practical  construction  of  the  Constitu- 
tion that  this  power  was  vested  in  the  President  alone. 
And  such  would  appear  to  have  been  the  legislative  con- 
struction of  the  Constitution.'"  Such  is  the  unwritten 
understanding  of  the  Constitution,  which  was,  however 
occasionally  disturbed  by  the  circumstances  of  the  age. 

'  Ex  Parte  Hennen,  13  Pet.  259.  Blake  v.  United  States,  103  U. 
S.  229. 


132  THE    PRESIDENT. 

Once  in  1867,  under  President  Johnson's  administration, 
and  again  under  that  of  President  Cleveland.    The  bitter 
contention  between  the   Senate  and   President  may  be 
better  illustrated  in  quoting  the  language  of  Mr.  Cleve- 
land:    "Within  thirty  days  after  the  Senate  met  in  De- 
cember, 1885,  the  nominations  of  the  persons  who  had 
been  designated  to  succeed  officials  suspended  during  the 
vacation,  were  sent  to  that  body  for  confirmation  pur- 
suant to  existing  statutes.     Very  often  in  the  session 
frequent  requests  in  writing  began  to   issue   from  the 
Senate  to  which  these  nominations   were  referred,   di- 
rected to  the  heads  of  the  several  departments  having 
supervision   of  the  officers  to   which   the  nominations 
related,  asking  the  reason  for  the  suspension  of  the  offi- 
cers whose  places  it  was  proposed  to  fill  by  means  of  the 
nominations  submitted,  and  for  all  papers  on  file  in  their 
departments  which  showed  the  reason  for  such  suspen- 
sions. 

"In  considering  the  request  made  for  the  transmission 
of  the  reasons  for  suspensions  and  the  papers  relating 
thereto,  I  could  not  avoid  the  conviction  that  a  compli- 
ance with  such  requests  would  be  to  that  extent  a  failure 
to  protect  and  defend  the  Constitution,  as  well  as  a  wrong 
to  the  great  office  I  held  in  trust  for  the  people,  and  which 
I  was  bound  to  transmit  unimpaired  to  my  successors, 
nor  could  I  be  unmindful  of  a  tendency  in  some  quarters 


THE    PRESIDENT.  133 

to  encroach  upon  executive  functions,  or  of  the  eager- 
ness with  which  executive  concession  would  be  seized 
upon  as  estabHshing  precedence  .  .  . 

"Thus  was  an  unpleasant  controversy  happily  followed 
by  an  expurgation  of  the  last  pretence  of  statutory  sanc- 
tion to  encroachment  upon  constitutional  executive  pre- 
rogatives, and  thus  was  a  time  honored  interpretation 
of  the  Constitution  restored  to  us.  The  President  freed 
from  the  Senators  claim  of  tutelage,  became  again  the 
independent  agent  of  the  people,  representing  a  co-ordi- 
nate branch  of  their  government,  charged  with  responsibil- 
ities which  under  his  oath,  he  ought  not  to  avoid  or  divide 
with  others,  and  invested  with  powers,  not  to  be  surren- 
dered, but  to  be  used  under  guidance  of  patriotic  inten- 
tion and  an  unclouded  conscience."^ 

The  language  of  one  of  the  greatest  men  serves 
most  vital  and  everlasting  consequence  for  the  main- 
tenance of  the  American  constitutional  mechanism, 
"Check  and  Balance"  systems  of  the  government.  In 
the  meantime  all  the  Americans  understood  that  pre- 
rogative of  the  President  would  not  include  in  it  power 
of  anticipating  a  vacancy  and  appointing  an  officer  for 
such  vacancy;  and  that  in  matters  arising  out  of  the 
ministerial  duties  which  is  one  of  the  vast  and  enumer- 
ated powers  the  President  is  subjected  to,  if  necessary, 
*  Presidential  Problems,  P.  45-76. 


134  THE    PRESIDENT. 

such  judicial  interferences/  And  the  last  and  most  im- 
portant of  them  all  is  the  understanding  of  the  Presi- 
dent's cognizance  of  the  prerogative  of  the  Senate ;  name- 
ly, the  constitutional  power  of  the  Senate  to  advise  and 
consent,  if  necessary  to  restrain  the  President's  appoint- 
ment of  Federal  affairs. 

This  co-operation  of  the  Senate  and  President,  hoW' 
ever,  has  often  been  subjected  to  and  suggested  criticism. 
They  say  that  it  may  serve  to  give  the  President  an  undue 
influence  over  the  Senate  or  that  it  may  have  an  opposite 
tendency.  In  the  United  States  the  political  circum- 
stances manifests  itself  towards  totally  unlocked  for 
destiny.  Nationally  as  well  as  individually  the  American 
characteristics  ever  have  been  and  ever  will  be  very  pe- 
culiar, in  that  they  resist  encroachment  of  any  kind.  Am- 
bition of  one  separate  and  distinct  government  counteracts 
ambition  of  another.  It  is  said  that  justice  is  the  end  of 
government,  and  that  it  is  the  end  of  civil  society.  This 
is  true,  but  it  is  also  true  that  the  Americans  like  any 
other  human  race,  are  not  angels.  If  they  were,  no  gov- 
ernment would  be  necessary.  In  the  United  States  we 
notice  that  policy  of  supplying,  by  opposite  and  vital 
interests,  the  defects  of  better  motives,  which  is  trace- 
able through  the  whole  system,  private  or  public.  And 
then  the  electors  for  choosing  the  President,  as  well  as 

'  McCrary  and  Law  of  Elections,  Sec.  237-257.     Page  v.  Hardin, 
8  B.  Mons.  (Ky.)  648.     Marbery  v.  Madison,  i  Cranch.  137. 


MEMBERS    OF    THE     CABINET    AND     HIGH     OFFICIALS,     ROOSEVELT    ADMINISTRATION 


Members  of  the  Cabinet  and  the  High  Officials  with  the 
Roosevelt  Administration 


I.  Frank  P.  Sargent,  of  Vermont,  U.  S.  Commissioner  General  of  Immigration,  was 
chief  of  Brotherhood  of  Locomotive  Firemen,  a  member  of  the  Industrial 
Commission,  and  was  educated  in  the  public  schools  of  his  State. 

2.  Ethan   Allen    Hitchcock,   of   Missouri,    Secretary   of   the    Interior,   was   the   United 

States  Ambassador  Extraordinary  and  Minister  Plenipotentiary  to  Russia.  He 
was  educated  at  the   ^Military  Academy  in   New   Haven. 

3.  Henry  Martin  Hoyt,  Solicitor  General  of  the   United   States,  was  Assistant  Attor- 

ney General  of  the  United  States,  and  is  an  alumnus  of  Yale  and  Pennsyl- 
vania Universities. 

William  Loeb,  Jr.,  of  New  York,  Secretary  to  President  Roosevelt,  was  Secretary 
to  the  New  York  State  Assembly  and  Senate,  to  the  Governor  of  New  York, 
and  to  the  Vice-President  of  the  United  States.  He  was  educated  at  the  public 
schools  of  Albany,   New  York. 

5.  Charles  Joseph   Bonaparte,   of  Baltimore.   Secretary  of  the   Navy,   is   a  prominent 

member  of  the  Maryland  Bar.  He  is  a  graduate  of  Harvard  University. 

6.  Elihu  Root,  of  New  York.  Secretary  of  State,  was  the  United  States  Attorney  for 

the  Southern  District  of  New  York,  a  member  of  the  Alaskan  Boundary  Coin- 
mission  and  also  Secretary  of  War.  He  is  a  graduate  of  Hamilton  College  and 
the  University  of  the  City  of  New  York. 

7.  William    Howard   Taft,    of    Cincinnati,    Secretary   of    War.    and    President    of   the 

American  Red  Cross,  was  Assistant  Prosecuting  Atttorney,  then  Judge  of  the 
Superior  Court  of  Cincinnati.  He  was  sometime  Collector  of  Internal  Rev- 
enue. Solicitor  General  of  the  United  States,  the  United  States  Circuit  Court 
Judge  and  the  first  civil  Governor  of  the  Philippine  Islands.  He  is  a  graduate 
of  Yale  University  and  Cincinnati  College. 

8.  William  Henry  Moody,  of  Massachusetts,  Attorney  General,  was  District  Attorney 

in  Massachusetts,  and  the  United  States  Representative,  and  Secretary  of  the 
Navy.  He  is  a  graduate  of  Phillips  Academy  and  Harvard  University. 

9.  James  Wilson,  of  Iowa,  Secretary  of  Aericulture,  was  Speaker  of  the  State  House 

of  Assembly,  and  a  United  States  Representative  from  his  State.  He  was  also 
a  regent  of  the  Iowa  State  University,  and  sometime  Professor  at  the  To^va 
Agricultural  College  at  Ames. 

10.  Leslie   M.   Shaw,  of  Iowa.   Secretary  of  the  Treasury,  was  twice  Governor  of  the 

State  of  Iowa.  He  is  a  graduate  of  Cornell  University  and  also  the  Iowa 
College  of  Law. 

11.  Victor  Howard  Metcalf,  of  Oakland,  California,  Secretary  of  Commerce  and  Labor, 

was  the  United  States  Representative  from  his  State.  He  is  a  prominent  mem- 
ber of  the  California  Bar,  and  also  is  a  graduate  of  the  Utica  Free  Academy, 
Russell's  Military  Academy,  and  Yale  University,  of  New  Haven. 

12.  George  Bruce  Cortelyou,  of  New  York.  Postmaster  General,  was  stenographer  to 

President  Cleveland,  Secretary  to  President  Roosevelt  and  also  to  McKinley. 
He  was  appointed  the  first  Secretary  of  Commerce  and  Labor  and  also  Chair- 
man of  the  Republican  National  Committee.  He  is  a  graduate  of  the  George- 
town University  and  Columbian  (now  Georg^e  Washington)  University  of 
Washington,  D.  C. 

13.  Vespasian   Warner,   United   States   Commissioner   of   Pensions,   was   United   States 

Representative  from  Illinois.  He  is  a  graduate  of  Harvard  University. 

14.  Martin  A.  Knapp,  of  New  York,  Chairman  of  the   Interstate  Commerce   Conunis- 

sion,  was  Corporation  Counsel  in  his  State,  and  Professor  of  Columbian  (now 
George  Washington)   University  and  is  a  graduate  of  Wesleyan  University. 


THE  PRESIDENT.  137 

the  State  legislature  who  appoint  the  Senators  have  ever 
since  been  and  ever  will  be  composed  of  the  most  en- 
lightened, intelligent,  educated  and  respected  citizens. 
So  that  those  who  are  entrusted  with  such  confidence  and 
power,  possess  every  consideration  that  can  influence  the 
human  mind,  such  as  honor,  oath,  reputation,  conscience, 
the  love  of  country,  family  affections  and  attachments, 
that  afford  security  for  their  fidelity. 

Conclusive  evidence  resulting  from  the  experience  and 
development  of  the  separate  and  distinct  powers  of  the 
President  and  the  Senate  will  never  be  accummulated. 
We  have  just  grown  to  be  at  ease  as  it  could  never  be 
able  to  transform  itself  into  monarchial  or  aristocratic 
body,  or  any  other  body.  But  if  such  revolution  would 
ever  happen  the  House  of  Representatives,  with  the  peo- 
ple on  their  side  who  are  the  only  legitimate  fountain  of 
power,  and  who  alone  are  the  grantor  of  the  charter, 
will  at  any  and  all  times  be  able  to  bring  back  the  Con- 
stitution to  its  primitive  form. 


THE  COURTS 


THE  COURTS 


ARTICLE  IV. 

"The  judicial  power  shall  be  vested  in  one  Supreme  Court  and  such 
inferior  courts  as  Congress  may  from  time  to  time  ordain  and  es- 
tablish."—^r^  ///,  Sec.  I,  U.  S.  Const. 

Sec.  39.  The  legislative,  executive  and  judicial  powers 
of  every  well  constructed  government  are  co-extensive 
with  each  other ;  that  is,  they  are  potentially  co-extensive/ 
The  executive  department  may  constitutionally  execute 
every  law  which  the  legislature  may  constitutionally 
make,  and  the  judicial  department  may  receive  from  the 
legislature  the  power  of  construing  every  such  law.  All 
governments,  which  are  not  extremely  defective  in  their 
organization,  must  possess,  within  themselves,  the  means 
of  expounding  as  well  as  enforcing  their  own  laws.  If 
we  examine  the  Constitution  of  the  United  States,  we 
find  that  its  framers  kept  this  great  political  principle  in 
view.  The  first  article  empowers  all  legislative  powers 
in  Congress,  the  second  article  vests  the  whole  executive 
power  in  the  President;  and  the  third  article  declares, 
"that  the  judicial  powers  of  the  United  States  shall  be 

^  Osborn  v.  the  Bank  of  the  United  States,  9  Wheaton  738. 

141 


142  THE  COURTS. 

vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may  from  time  to  time  ordain  and  es- 
tabhsh.  The  judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compen- 
sation, which  shall  not  be  diminished  during  their  con- 
tinuance in  office." 

The  standard  of  good  behavior  for  the  continuance  in 
office  of  the  judicial  magistracy,  is  certainly  one  of  the 
most  valuable  of  the  modern  improvements  in  the  prac- 
tice of  government.  In  a  monarchy,  it  is  an  excellent 
barrier  to  the  despotism  of  the  prince;  in  a  republic, 
it  is  a  no  less  excellent  barrier  to  the  encroachments 
and  oppressions  of  the  representative  body.  And  it 
is  the  best  expedient  which  can  be  devised  in  any  gov- 
ernment, to  secure  a  steady,  upright,  and  impartial  ad- 
ministration of  law.  * 

Whoever  attentively  considers  the  different  depart- 
ments of  power  must  perceive,  that  in  a  government 
in  which  they  are  separated  from  each  other,  the  ju- 
diciary, from  the  nature  of  its  functions,  will  always 
be  the  least  dangerous  to  the  political  right  of  the  Con- 
stitution; because  it  will  be  least  in  capacity  to  annoy 
or  injure  them.  The  executive  not  only  dispenses 
the  honors,  but  holds  the  sword  of  the  community; 
the  legislative  not  only  commands  the  purse,  but  it 
*  No.  LXXVIII  Federalist. 


THE  COURTS.  143 

prescribes  the  rules  by  which  the  duties  and  rights 
of  every  citizen  are  to  be  regulated;  the  judiciary,  on 
the  contrary,  has  no  influence  over  either  the  sword 
or  the  purse;  no  direction  either  of  the  strength  or  of 
the  wealth  of  society;  and  can  take  no  active  reso- 
lution whatever.  It  may  truly  be  said  to  have  neither 
force  nor  will,  but  merely  judgment;  and  must  ulti- 
mately depend  upon  the  aid  of  the  executive  arm  for 
the  efficacious  exercise  even  of  this  faculty. 

It  is  further  said  that  the  judiciary  is  next  to  nothing; 
that  it  can  never  attack  with  success  either  of  the  other 
two ;  and  that  all  possible  care  is  requisite  to  enable  it  to 
defend  itself  against  their  attacks.  Though  individual 
oppression  may  now  and  then  proceed  from  the  courts  of 
justice,  the  general  liberty  of  the  people  can  never  be  en- 
dangered from  that  quarter  as  long  as  the  judiciary 
remains  truly  distinct  from  both  the  legislature  and 
executive.  In  the  last  place,  that  as  liberty  can  have 
nothing  to  fear  from  the  judiciary  alone,  but  would  have 
everything  to  fear  from  its  union  with  either  of  the  other 
departments;  that,  as  all  the  effects  of  such  an  union 
must  ensue  from  a  dependance  of  the  former  on  the  latter, 
notwithstanding  a  nominal  and  apparent  separation ;  that 
as  from  the  natural  feebleness  of  the  judiciary,  it  is  in 
continual  jeopardy  of  being  over-powered,  awed  or  in- 
fluenced by  its  co-ordinate  branches ;  that,  as  nothing  can 


144  THE  COURTS. 

contribute  so  much  to  its  fairness  and  independence  as 
permanency  in  office;  this  quality  may,  therefore,  be  just- 
ly regarded  as  an  indispensable  ingredient  in  its  consti- 
tution, and  in  a  great  measure,  as  the  citadel  of  the  public 
justice  and  the  public  security. 

Sec.  40.  The  judicial  power  of  the  United  States 
shall  extend  to  all  cases,  in  law  and  equity,  arising  under 
the  Constitution,  the  laws  of  the  United  States,  and  treat- 
ies made  under  their  authority;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls;  to  all 
cases  of  admiralty  and  maritime  jurisdiction;  to  contro- 
versies to  which  the  United  States  shall  be  a  party; 
to  controversies  between  two  or  more  States,  between 
citizens  of  different  States,  between  citizens  of  the  same 
State,  claiming  lands  under  grants  of  different  States, 
and  between  a  State,  or  citizens  thereof,  and  foreign 
States,  citizens,  or  subjects/ 

By  this  constitutional  declaration  the  judicial  depart- 
ment receives  jurisdiction,  when  any  question  respect- 
ing any  of  the  clauses  shall  assume  such  a  form  that  the 
judicial  power  is  capable  of  acting  on  it.  That  power 
is  capable  of  acting  only  when  the  subject  is  submitted 
to  it  by  a  party  who  asserts  his  rights  in  the  form  pre- 
scribed by  law.  It  then  becomes  a  case,  and  the  judicial 
power  shall  extend  to  all  cases,  as  declared  by  the  Con- 
stitution. 

'  Art.  Ill,  Sec.  2,  U.  S.  Const. 


CHIEF    JUSTICE    MARSHALL 


THE  COURTS.  147 

A  suit  was  brought  in  the  Circuit  Court  of  the  United 
States  for  Ohio  by  the  bank  of  the  United  States,  to  re- 
strain Osborn  and  others,  officers  of  the  State  of  Ohio, 
from  collecting  a  State  tax  on  the  bank.  A  decree  was 
rendered  against  the  State  officers,  who  appealed  to 
the  Supreme  Court  of  the  United  States.  In  the  Su- 
preme Court  the  respondents  re-argued  that  the  case  was 
constitutionally  within  the  National  judiciary  as  it  has 
arisen  under  the  law  of  the  United  States,  and  the  appel- 
lants contended  that  it  was  not,  because  several  questions 
may  arise  in  it  which  depend  on  the  general  principles 
of  the  law,  not  on  any  act  of  Congress. 

The  Supreme  Court  affirmed  the  decree  of  the  cir- 
cuit court,  and  the  opinion  was  delivered  by  Chief  Jus- 
tice Marshall.'  The  celebrated  jurist,  in  his  opinion 
expounding  the  constitutional  grant  of  jurisdiction,  said : 
"If  this  were  sufficient  to  withdraw  a  case  from  the 
jurisdiction  of  the  Federal  courts,  almost  every  case, 
although  involving  the  construction  of  a  law,  would  be 
withdrawn;  and  a  clause  in  the  Constitution  relating  to 
a  subject  of  vital  importance  to  the  Government,  and 
expressed  in  the  most  comprehensive  terms,  would  be 
construed  to  mean  almost  nothing." 

There  is  scarcely  any  case,  every  part  of  which  de- 
pends on  the  Constitution,  laws,  or  treaties  of  the 
^  Osborn  v.  the  Bank  of  the  United  States,  9  Wheaton  738. 


148  THE   COURTS. 

United  States.  The  question  whether  the  fact  alleged 
as  the  foundation  of  the  action  be  real  or  fictitious; 
whether  the  conduct  of  the  plaintiff  has  been  such  as  to 
entitle  him  to  maintain  his  action;  whether  his  right  is 
barred;  whether  he  has  received  satisfaction,  or  has 
in  any  manner  released  his  claims,  are  questions,  some  or 
all  of  which  may  occur  in  almost  every  case,  and  if  their 
existence  be  sufficient  to  arrest  the  jurisdiction  of  the 
court,  words  which  seem  intended  to  be  as  extensive  as 
the  Constitution;  laws  and  treaties  of  the  Union,  which 
seem  designed  to  give  the  courts  of  the  Government  the 
construction  of  all  its  acts,  so  far  as  they  affect  the 
rights  of  individuals,  would  be  reduced  to  almost  nothing. 
In  those  cases  in  which  original  jurisdiction  is  given 
to  the  Supreme  Court,  the  judicial  power  of  the  United 
States  cannot  be  exercised  in  its  appellate  form.  In 
every  other  case  the  power  is  to  be  exercised  in  its 
original  or  appellate  form,  or  both,  as  the  wisdom  of 
Congress  may  direct.  With  the  exception  of  these  cases 
in  which  original  jurisdiction  is  given  to  the  Supreme 
Court,  there  is  none  to  which  the  judicial  power  ex- 
tends, from  which  the  original  jurisdiction  of  the  in- 
ferior courts  is  excluded  by  the  Constitution.  Original 
jurisdiction,  so  far  as  the  Constitution  gives  a  rule,  is 
co-extensive  with  the  judicial  power.  We  find  in  the 
Constitution  no  prohibition  to  its  exercise  in  every  case 


THE  COURTS.  I49 

in  which  the  judicial  power  can  be  exercised.  It  would 
be  a  very  bold  construction  to  say  that  this  power  could 
be  applied  in  its  appellate  form  only,  to  the  most  im- 
portant class  of  cases  to  which  it  is  applicable. 

The  Constitution  establishes  the  Supreme  Court,  and 
defines  its  jurisdiction.  It  enumerates  cases  in  which 
its  jurisdiction  is  original  and  exclusive;  and  then  de- 
fines that  which  is  appellate,  but  does  not  insinuate  that, 
in  any  such  case,  the  power  can  not  be  exercised  in  its 
original  form  by  courts  of  original  jurisdiction.  It  is 
not  insinuated  that  the  judicial  power,  in  cases  depend- 
ing on  the  character  of  the  cause,  cannot  be  exercised 
in  the  first  instance  in  the  courts  of  the  Union,  but  must 
first  be  exercised  in  the  tribunals  of  the  State;  tribunals 
over  which  the  Government  of  the  Union  has  no  ade- 
quate control,  and  which  may  be  closed  to  any  claim  as- 
serted under  a  law  of  the  United  States. 

We  perceive,  then,  no  ground  on  which  the  proposi- 
tion can  be  maintained,  that  Congress  is  incapable  of 
giving  the  Circuit  Court  original  jurisdiction  in  any  case 
to  which  the  appellate  jurisdiction  extends. 

Sec.  41.  The  National  and  the  State  courts  are  not 
foreign  to  each  other,  but  are  interdependent,  co-operat- 
ing systems,  and  together  constitute  one  vast  machine 
of  justice,  planned  and  operated  that  a  remedy  may  be 
found  for  every  wrong,  and  that  protection  is  afforded 


150  THE  COURTS. 

the  weakest  against  the  most  powerful,  without  regard 
to  residence  or  nationality/ 

Each  State  has  a  common  law  of  its  own,  derived,  in 
the  case  of  most  of  them,  from  the  common  law  of  Eng- 
land, but  modified  more  or  less  in  adoption  by  circum- 
stances, usages,  or  statutes.  This  common  law  deter- 
mines to  a  great  extent  the  civil  right  of  the  people,  and  it 
also  makes  many  acts  punishable  as  crimes.  But  the 
United  States,  as  such,  can  have  no  common  law. 

No  act  can  be  a  crime  against  the  United  States  which 
is  not  made  or  recognized  as  such  by  Federal  Constitu- 
tion, law,  or  treaty.^  But  the  Federal  courts  sitting  in 
the  several  States,  where  their  jurisdiction  depends  upon 
the  character  or  residence  of  the  parties  who  sue  or  are 
sued,  administer  for  the  most  part  the  local  law,  and 
they  take  notice  of  the  State  common  law,  usages,  stat- 
utes, and  apply  them  as  the  State  courts  would  apply 
them  in  like  controversies.  In  all  such  cases  of  the  de- 
cisions of  the  State  courts,  affording  precedents  for 
their  guidance,  the  Federal  courts  are  to  follow  them 
for  uniformity,  and  the  State  decisions  will  thus  become 
the  final  rule  and  authority  on  questions  of  State  law, 
for  like  reasons  to  those  which  require  finality  to  Federal 
decisions  on  questions  of  Federal  law. 

*  Claflin  V.  Houseman,  93  U.  S.  130. 

"  United  States  v.  Hudson,  7  Crouch.  32. 


THE  COURTS.  I5I 

But  there  are  certain  cases  in  which  this  rule  can  not 
be  appHed,  because  the  reasons  on  which  it  rests  are  in- 
appHcable.  It  can  not,  for  example,  be  applied  in  any 
case  where  the  decision  of  the  State  court  involves  a 
question  of  National  authority,  or  any  right,  title,  priv- 
ilege, or  exemption  derived  from  or  claimed  under  the 
Constitution,  or  any  law  or  treaty  of  the  United  States. 
Let  us  examine  applicable  and  inapplicable  cases  with 
patience. 

In  the  case  of  Bock  v.  Perkins,  Mr.  Justice  Harlan 
said:  That  every  marshal  of  the  United  States,  as  well 
as  his  deputy,  must  take  an  oath  or  affirmation  that  he 
will  faithfully  execute  all  lawful  precepts  directed  to 
him,  and  in  all  things  well  and  truly  perform  the  duties 
of  his  office.  The  marshal  must  also  give  bond,  with 
securities,  for  the  faithful  performance  of  the  duties  of 
his  office  by  himself  and  deputies.  And  marshals  and 
their  deputies  have,  in  the  respective  States,  the  same 
powers  in  executing  the  laws  of  the  United  States  as 
sheriffs  and  their  deputies  have  in  executing  the  laws  of 
such  States.  A  case,  therefore,  depending  upon  the  in- 
quiry whether  a  marshal  or  his  deputy  has  rightfully  exe- 
cuted a  lawful  precept  directed  to  the  former  from  a  court 
of  the  United  States,  is  one  arising  under  the  laws  of  the 
United  States;  and  for  any  failure  in  that  regard,  he 
would  be  liable  to  suit  by  anyone  thereby  injured.    This 


152  THE  COURTS. 

case  was,  therefore,  one  arising  under  the  laws  of  the 
United  States,  and  removable  from  the  State  court/ 

In  Buck  V.  Colbath  we  may  perceive  the  working  of 
the  two  systems.     Colbath  sued  Buck  in  a  State  court  in 
trespass  for  taking  his  goods,  the  latter  pleading  simply 
that  he  was  marshal  of  the  United  States,  and  had  seized 
the  goods  under  an  attachment  against  the  property  of 
certain  parties  named  in  the  writ.     The  Supreme  Court, 
upon  error  to  the  highest  court  of  the  State,  held  that 
the  marshal  was  guilty  of  trespass  in  levying  upon  the 
property  of  one  against  whom  the  writ  did  not  run,  and 
could  be  sued  therefore  in  the  State  court — the  mere 
fact  that  the  writ  issued  from  a  Federal  Court  consti- 
tuting no  defense.''     The  judgment  in  that  case  against 
the  marshal  was  reviewed  in  the  Supreme  Court  under 
the  act  of  Congress  authorizing  such  review  in  cases 
where  a  party  specially  claimed  the  protection  of  an  au- 
thority exercised  under  the  United  States,  and  the  de- 
cision withheld  the  protection  so  claimed. 

Sec.  42.  The  Constitution  declares  that  the  judicial 
power  of  the  United  States  shall  extend  to  all  cases  af- 
fecting ambassadors  or  other  public  ministers  and  consuls. 

Judicial  act  of  1789  invested  the  District  Courts  of 
the  United  States  with  "jurisdiction,  exclusively  of  the 
courts  of  the  several  States  of  all  suits  against  consuls  or 

'  Bock  V.  Perkins,  130  U.  S.  628.    In  re  Neagle,  135  U.  S.  i. 
"  Buck  V.  Colbath,  3  Wall.  334-    Ex  parte  Crouch.  112  U.  S.  178. 


THE   COURTS.  I53 

vice-consuls,"  except  for  offences  of  a  certain  character; 
the  Supreme  Court,  with  "original,  but  not  exclusive, 
jurisdiction  of  all  suits,  in  which  a  consul  or  vice-consul 
shall  be  a  party"  and  the  Circuit  Courts,  with  "jurisdic- 
tion of  civil  suits  in  which  an  alien  is  a  party."  In  this  act 
we  have  an  affirmance  by  the  first  Congress — many  of 
whose  members  participated  in  the  convention  which 
adopted  the  Constitution,  and  were,  therefore,  convers- 
ant with  the  purposes  of  its  framers — of  the  principle 
that  the  original  jurisdiction  of  the  Supreme  Court,  of 
cases  in  which  a  consul  or  vice-consul  is  a  party,  is  not 
necessarily  exclusive,  and  that  the  subordinate  courts  of 
the  Union  may  be  invested  with  jurisdiction  of  cases  af- 
fecting such  representatives  of  foreign  governments. 

Very  early  after  the  passage  of  that  act,  the  case  of  the 
United  States  against  Ravara,'  was  tried  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Pennsylva- 
nia, before  Justice  Wilson  and  Iredell  of  the  Supreme 
Court,  and  the  district  judge.  It  was  an  indictment 
against  a  consul  for  a  misdemeanor  of  which  it  was 
claimed  the  Circuit  Court  had  jurisdiction  under  the 
eleventh  section  of  the  Judiciary  Act,  giving  Circuit 
Courts  "exclusive  cognizance  of  all  crimes  and  offences 
cognizable  under  the  authority  of  the  United  States,"  ex- 
cept where  that  act  "otherwise  provides,  or  the  laws  of 
*  2   Dall.   297. 


154  THE  COURTS. 

the  United  States  shall  otherwise  direct,  and  concurrent 
jurisdiction  with  the  district  courts  of  the  crimes  and  of- 
fences cognizable  therein."  In  behalf  of  the  accused  it 
was  contended  that  the  Supreme  Court,  in  virtue  of  the 
constitutional  grant  to  it  of  original  jurisdiction  in  all 
cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  had  exclusive  jurisdiction  of  the  prosecution 
against  him.  Mr.  Justice  Wilson  and  the  district  judge 
concurred  in  overruling  this  objection.  They  were  of 
the  opinion  that  although  the  Constitution  invested  the 
Supreme  Court  with  original  jurisdiction,  in  cases  affect- 
ing consuls,  it  was  competent  for  Congress  to  confer  con- 
current jurisdiction,  in  those  cases,  upon  such  inferior 
courts  as  might  by  law  be  established.  The  indictment 
was  sustained,  and  the  defendant,  upon  the  final  trial, 
at  which  Chief  Justice  Jay  presided,  was  found  guilty. 
He  was  subsequently  pardoned  on  condition  that  he 
would  surrender  his  commission  and  exequatur. 

United  States  against  Ortega,'  which  was  a  criminal 
prosecution  in  a  circuit  court  of  the  United  States,  for 
the  offence  of  offering  personal  violence  to  a  public  min- 
ister, contrary  to  the  law  of  nations  and  the  act  of  Con- 
gress, one  of  the  questions  certified  for  decision  was 
whether  the  jurisdiction  conferred  by  the  Constitution 
upon  the  Supreme  Court,  in  cases  affecting  ambassadors 
*  II  Wheat.  467. 


THE  COURTS.  1 57 

or  Other  public  ministers  and  consuls,  was  not  only  orig- 
inal but  exclusive  of  the  circuit  courts.  But  its  decis- 
ion was  waived  and  the  case  determined  upon  another 
ground.  Of  that  case  it  was  remarked  by  Chief  Jus- 
tice Taney/  that  an  expression  of  opinion  upon  that 
question  would  not  have  been  waived  had  the  court  re- 
garded it  as  settled  by  previous  decisions. 

In  Graham  v.  Stucken  Mr.  Justice  Nelson  said  that* 
"it  could  hardly  have  been  the  intention  of  the  statesmen 
who  framed  our  Constitution  to  require  that  one  of  our 
citizens  who  had  a  petty  claim  of  even  less  than  five 
dollars  against  another  citizen,  who  had  been  clothed  by 
some  foreign  government  with  the  consular  office,  should 
be  compelled  to  go  into  the  Supreme  Court  to  have  a  jury 
summoned  in  order  to  enable  him  to  recover  it;  nor 
could  it  have  been  intended  that  the  time  of  that  court,, 
with  all  its  high  duties  to  perform,  should  be  taken  up 
with  the  trial  of  every  petty  offence  that  might  be  com- 
mitted by  a  consul  in  any  part  of  the  United  States; 
that  consul,  too,  being  often  one  of  our  own  citizens.'^ 
Such  was  the  state  of  the  law  when  the  revised  statutes 
of  the  United  States  went  into  operation.  By  section 
563  it  was  provided  that  "the  District  Courts  shall  have 
jurisdiction  of  all  suits  against  consuls  or  vice-consuls," 
except  for  certain  offences;  by  section  629,  that  "the, 

^  Gittings  V.  Crawford,  Taney's  Dec,  15. 
^  Graham  v.  Stucken,  4  Blatch,  30. 


158  THE   COURTS. 

circuit  courts  shall  have  original  jurisdiction"  of  certain 
classes  of  cases,  among  which  are  civil  suits  in  which  an 
alien  is  a  party;  by  section  687,  that  the  Supreme  Court 
shall  have  "original  but  not  exclusive  jurisdiction  of  all 
suits  in  which  a  consul  or  vice-consul  is  a  party" ;  and  by 
section  711,  that  the  jurisdiction  vested  in  the  courts  of 
the  United  States  in  the  cases  and  proceedings  there  men- 
tioned, among  which  are  "suits  against  ambassadors  or 
other  public  ministers  or  their  domestics,  or  domestic 
servants,  or  against  consuls  or  vice-consuls,"  shall  be  ex- 
clusive of  the  courts  of  the  several  States.  But  by  the 
act  of  February  18,  1875,  ^^^.t  part  of  section  711,  last 
quoted,  was  repealed,'  that,  by  the  existing  law,  there 
is  no  statutory  provision  which,  in  terms,  makes  the  juris- 
diction of  the  courts  of  the  United  States  exclusive  of 
the  State  courts  in  suit  against  consuls  or  vice-consuls. 

Sec.  43.  The  judicial  power  of  the  United  States  is 
made  to  extend  to  all  cases  of  admiralty  and  maritime 
jurisdiction. 

It  is  said  that  those  who  framed  the  Constitution,  and 
the  lawyers  in  America  in  that  day  were  familiar  with  a 
different  and  more  extensive  jurisdiction  in  most  of  the 
States  when  they  were  Colonies  than  was  allowed  in  Eng- 
land, from  the  interpretation  which  was  given  by  the 
•common  law  courts  to  the  restraining  statutes  of  Rich- 
'  18  Stat.  318. 


THE   COURTS.  159 

arc!  II  and  Henry  IV.  The  commission  to  the  vice- 
admirals  in  the  Colonies  in  North  America,  insular  and 
continental,  contained  a  much  larger  jurisdiction  than 
existed  in  England  when  they  were  granted. 

That  to  the  governor  of  New  Hampshire  invested  him 
with  the  power  of  an  admiralty  judge,  declares  the  juris- 
diction to  extend  "throughout  all  and  every  the  sea- 
shores, public  streams,  ports,  fresh  water  rivers,  creeks, 
and  arms,  as  well  as  of  the  sea  as  of  the  rivers  and  coasts 
whatsoever,  of  our  said  provinces." ' 

The  admirality  jurisdiction,  ancient  and  circumscribed 
as  it  afterwards  was  in  England,  and  as  it  was  exercised  in 
the  Colonies,  was  necessarily  the  subject  of  examination, 
when  Congress  was  preparing  the  declaration  and  re- 
solves of  the  14th  of  October,  1774,  in  which  it  is  said 
"that  the  several  acts  of  4  Geo.  Ill,  c.  15,  34;  5  Geo.  Ill, 
c.  25 ;  6  Geo.  Ill,  c.  52 ;  7  Geo.  Ill,  c.  41 ;  8  Geo.  Ill, 
c.  22,  which  impose  duties  for  the  purpose  of  raising  a 
revenue  in  America,  extend  the  power  of  the  admiralty 
courts  beyond  their  ancient  limits."  *  The  ancient  limits 
of  admiralty  jurisdiction  repeatedly  alluded  to  by  men 
fully  acquainted  with  every  part  of  English  jurispru- 
dence as  they  had  believed  it  had  existed  in  England  at 
one  time  much  beyond  what  was  at  that  time  its  exercise 
in  her  admiralty  courts. 

^  Journals  of  Congress,  21,  33,  47. 


l60  THE  COURTS. 

Sec.  44.  In  the  case  of  the  steamship  Magnolia^ 
which  was  a  proceeding  in  admiralty  on  account  of  a 
colHsion  occurring  in  the  Alabama  River,  in  the  county 
of  Wilcox,  in  the  State  of  Alabama,  it  was  contended 
that  the  jurisdiction  in  admiralty  did  not  attach,  be- 
cause, first,  the  collision  was  within  the  body  of  the 
county,  and  second,  because  it  was  at  a  point  on  the 
river  above  tide  water.  But  the  contentions  were  over- 
ruled on  the  ground,  first,  that  after  the  adoption  of  the 
Constitution  the  exercise  of  admiralty  and  maritime  juris- 
diction over  its  public  rivers,  ports,  and  havens,  was 
surrendered  by  each  State  to  the  Government  of  the 
United  States,  without  an  exception  as  to  the  subjects 
or  places,  the  Supreme  Court  cannot  interpolate  one 
into  the  Constitution,  or  introduce  an  arbritary  dis- 
tinction which  has  no  foundation  in  reason  or  prece- 
dent, therefore,  the  objection  to  jurisdiction  that  the 
collision  was  within  the  county  can  have  no  greater 
force  or  effect  from  the  fact  that  the  Alabama  River 
so  far  as  it  is  navigable,  is  wholly  within  the  boundary 
of  the  State;  second,  that  though  in  England  the  flux 
and  reflux  of  the  tide  was  a  sound  and  reasonable  test  of 
a  navigable  river,  because  on  that  island  tide-water  and 
navigable  water  were  synonymous  terms,  yet  there  is 
certainly  nothing  in  the  ebb  and  flow  of  the  tide  that 
^  20  How.  296. 


THE  COURTS.  l6l 

makes  the  waters  peculiarly  suitable  for  admiralty  juris- 
diction, nor  anything  in  the  absence  of  a  tide  that  renders 
it  unfit.  The  case  of  Thomas  Jefferson,  lo  Wheaton, 
and  others,  which  has  hastily  adopted  this  arbitrary  and 
false  test  of  navigable  waters,  were  necessarily  overruled. 
Sec.  45.  The  steamship  Moses  Taylor,  a  vessel  of 
over  one  thousand  tons  burden,  was  owned  by  Marshall 
O.  Roberts  of  the  city  of  New  York,  and  was  employed 
by  him  in  navigating  the  Pacific  Ocean,  and  in  carrying 
passengers  and  freight  between  Panama  and  San  Fran- 
cisco. In  October,  1863,  the  plaintiff  in  the  court  below, 
the  defendant  in  error  in  the  Supreme  Court,  entered 
into  a  contract  with  Roberts,  as  owner  of  this  steamship, 
by  which,  in  consideration  of  one  hundred  dollars,  Rob- 
erts agreed  to  transport  him  from  New  York  to  San 
Francisco  as  a  steerage  passenger,  with  seasonable  dis- 
patch, and  to  furnish  him  with  proper  and  necessary  food, 
water,  and  berth,  or  other  conveniences  for  lodging,  on 
the  voyage.  For  alleged  breach  of  this  contract,  the 
present  action  was  brought  under  the  statute  of  the 
State  of  California,  in  a  county  court  of  the  State.  The 
agent  for  the  Moses  Taylor  appeared  to  the  action  and 
denied  the  jurisdiction  of  the  court,  insisting  that  the 
cause  of  action  was  one  over  which  the  courts  of  admir- 
alty had  exclusive  jurisdiction,  which  objection  to  the 
jurisdictions  having  been  overruled  and  judgment  for 


l62  THE   COURTS. 

the  amount  claimed  given.  The  case  is  brought  into  the 
Supreme  Court  of  the  United  States  by  writ  of  error 
from  that  court. 

Justice  Field,  in  delivering  the  opinion  of  the  court, 
is  reported  to  have  said  the  case  presented  is  clearly  one 
within  the  admiralty  and  maritime  jurisdiction  of  the 
Federal  courts.  The  contract  for  the  transportation  of 
the  plaintiff  was  a  maritime  contract.  As  stated  in  the 
complaint,  it  related  exclusively  to  a  service  to  be  per- 
formed on  the  high  seas,  and  pertained  solely  to  the  busi- 
ness of  commerce  and  navigation.  There  is  no  dis- 
tinction in  principle  between  a  contract  of  this  character 
and  a  contract  for  the  transportation  of  merchandise. 
The  same  liability  attaches  upon  their  execution  both  to 
the  owner  and  the  ship.  The  passage  money  in  the  one 
case  is  equivalent  to  the  freight  money  in  the  other. 
A  breach  of  either  contract  is  the  appropriate  subject  of 
admiralty  jurisdiction. 

Particularly  by  the  legislation  of  the  Congress,  the 
cognizance  of  civil  causes  of  admiralty  and  maritime  juris- 
diction vested  in  the  district  courts  by  the  ninth  section 
of  the  judiciary  act  may  be  supported  upon  like  consid- 
erations. It  has  been  made  exclusive  by  Congress,  and 
that  is  sufficient,  even  if  we  should  admit  that  in  the 
absence  of  the  legislation  the  State  court  might  have 


THE   COURTS.  1 63 

taken  cognizance  of  these  causes.  The  case  of  the 
Moses  Taylor  is  not  within  the  saving  clause  of  the 
ninth  section.  That  clause  only  saves  to  suitors  "the 
right  of  a  common-law  remedy,  where  the  common-law 
is  competent  to  give  it."  It  is  not  a  remedy  in  the  com- 
mon-law courts  which  is  saved,  but  a  common-law  rem- 
edy. A  proceeding  in  rem,  as  used  in  the  admiralty 
courts,  is  not  a  remedy  afforded  by  the  common-law; 
it  is  a  proceeding  under  the  civil  law.  When  used  in  the 
common-law  courts,  it  is  given  by  statute. 

Sec.  46.  In  1891,  the  case  of  Manchester  v.  Mass- 
achusetts; the  case  of  criminal  prosecution  in  the  courts 
of  Massachusetts  to  impose  a  fine  for  violation  of  a  State 
statute  regulating  the  method  of  fishing  in  Buzzard's 
Bay.  The  place  where  the  acts  charged  were  com- 
mitted was  in  that  part  of  the  bay  which  was  within  a 
marine  league  from  the  Massachusetts  shore  at  low 
water  mark.  The  Supreme  Court  of  Massachusetts  held 
the  statute  to  be  constitutional.  And  the  defendant  sued 
out  a  writ  of  error  to  the  Supreme  Court.* 

The  highest  court  of  the  United  States  is  reported  to 
have  said  that  the  statute  of  Massachusetts,  which  the 
defendant  is  charged  with  violating,  is,  in  terms,  con- 
fined to  waters  "within  the  jurisdiction  of  this  Com- 
monwealth" ;  and  it  was  evidently  passed  for  the  preser- 
*  Manchester  v.  Massachusetts,  139  U.  S.  240. 


164  THE  COURTS. 

vation  of  the  fish,  and  makes  no  discrimination  in  favor 
of  citizens  of  Massachusetts  and  against  citizens  of  other 
States.  If  there  be  a  Hberty  of  fishing  for  swimming 
fish  in  the  navigable  waters  of  the  United  States  common 
to  the  inhabitants  or  the  citizens  of  the  United  States,  upon 
which  we  express  no  opinion,  the  statute  may  well 
be  considered  as  an  impartial  and  reasonable  regulation 
of  this  liberty;  and  the  subject  is  one  which  a  State 
may  well  be  permitted  to  regulate  within  its  territory,  in 
the  absence  of  any  regulation  by  the  United  States. 
The  preservation  of  fish,  even  though  they  are  not  used 
as  food  for  human  beings,  but  as  food  for  other  fish 
which  are  so  used,  is  for  the  common  benefit;  and  we 
are  of  the  opinion  that  the  statute  is  not  repugnant  to 
the  Constitution  and  the  laws  of  the  United  States. 

It  may  be  observed  that  section  4398  of  the  Revised 
Statutes  (a  re-enactment  of  section  4  of  the  joining 
resolution  of  February  9,  1871)  provides  as  follows 
in  regard  to  the  Commissioners  of  Fish  and  Fisheries: 
"The  commissioners  may  take  or  cause  to  be  taken  at 
all  times,  in  the  waters  of  the  sea-coast  of  the  United 
States,  where  the  tide  ebbs  and  flows,  and  also  in  the 
waters  of  the  lakes,  such  fish  or  specimens  thereof  as 
may,  in  his  judgment,  from  time  to  time,  be  needful  or 
proper  for  the  conduct  of  his  duties,  any  law,  custom,  or 
usage  of  any  State  to  the  contrary  notwithstanding." 


THE   COURTS.  165 

This  enactment  may  not  improperly  be  construed  as 
suggesting  that,  as  against  the  law  of  a  State,  the  Fish 
Commissioner  might  not  otherwise  have  the  right  to 
take  fish  in  places  covered  by  the  State  law. 

The  pertinent  observation  may  be  made  that,  as  Con- 
gress does  not  assert  by  legislation  a  right  to  control 
pilots  in  bays,  inlets,  rivers,  harbors,  and  ports  of  the 
United  States,  but  leaves  the  regulation  of  that  matter 
to  the  State,  so,  if  it  does  not  assert  by  affirmative  leg- 
islation its  right  or  will  to  assume  the  control  of  man- 
haden  fisheries  in  such  bays,  the  right  to  control  such 
fisheries  must  remain  with  the  State  which  contains 
such  bays.' 

We  do  not  consider  the  question  whether  or  not 
Congress  could  have  the  right  to  control  the  manhaden 
fisheries  which  the  State  of  Massachusetts  assumes  to 
control ;  but  we  mean  to  say  only  that,  as  the  right  of 
control  exists  in  the  State  in  the  absence  of  the  affirm- 
ative action  of  Congress  taking  such  control,  the  fact 
that  Congress  has  never  assumed  the  control  of  such 
fisheries  is  persuasive  evidence  that  the  right  to  control 
them  still  remains  in  the  State. 

Sec.  47.  The  judicial  power  extends  "to  controver- 
sies to  which  the  United  States  shall  be  a  party."  It  is 
a  fundamental  principle  of  public  law,  affirmed  by  a  long 

^  Cooley  V.  Board  of  Warden,  12  How.  299. 


l66  THE   COURTS. 

series  of  decisions  of  the  Supreme  Court,  that  no  suit 
can  be  maintained  against  the  United  States  without  ex- 
press authority  of  Congress.  The  United  States,  by- 
various  acts  of  Congress,  have  consented  to  be  sued 
in  their  own  courts  in  certain  classes  of  cases;  but  they 
have  never  consented  to  be  sued  in  the  courts  of  a  State 
in  any  case.  Neither  the  Secretary  of  War,  nor  the 
Attorney-General,  nor  any  subordinate  of  either,  has 
been  authorized  to  waive  the  exemption  of  the  United 
States  from  judicial  process,  or  to  submit  the  United 
States  or  their  property  to  the  jurisdiction  of  the  court 
in  a  suit  brought  against  their  officers. 

Chief  Justice  Marshall  had  occasion  to  remark  that 
"There  seems  to  be  a  necessity  for  admitting  that  the 
fact  might  be  disclosed  to  the  court  by  the  suggestion  of 
the  attorney  for  the  United  States."^  "However," 
says  Mr.  Justice  Gray,  "the  answer  actually  filed  by  the 
district  attorney,  is  treated  as  undertaking  to  make 
the  United  States  a  party  defendant  in  the  cause,  and 
liable  to  have  judgment  against  them,  was  in  excess  of 
the  instructions  of  the  Attorney  General,  and  of  any  pow- 
er vested  by  law  in  him  or  in  the  district  attorney,  and 
could  not  constitute  Voluntary  submission  by  the  United 
States  to  the  jurisdiction  of  the  court.'  " ' 

Sec.  48.     The  specific  power  under  examination  will 

*  The  Exchange,  7  Cranch.   116. 

^  Stanley  v.  Schwalby,  162  U.  S.  255. 


THE   COURTS.  167 

also  extend  *'to  controversies  between  two  or  more 
States." 

In  controversies  between  two  nations  concerning  nat- 
ional boundary,  it  is  scarcely  possible  that  the  courts  of 
either  should  refuse  to  abide  by  the  measures  adopted 
by  its  own  government.  There  being  no  common  tri- 
bunal to  decide  between  them,  each  determines  for 
itself  on  its  own  rights,  and  if  they  cannot  adjust  their 
differences  peaceably  the  right  remains  with  the  strong- 
est.' The  judiciary  is  not  that  department  of  the  govern- 
ment to  which  the  assertion  of  its  interest  against  for- 
eign powers  is  confided;  and  its  duty  commonly  is  to  de- 
cide upon  individual  rights,  according  to  those  principles 
which  the  political  departments  of  the  nations  have  es- 
tablished. 

If  the  cause  of  the  Nation  has  been  a  plain  one,  its 
courts  would  hesitate  to  pronounce  it  erroneous. 

If  those  departments  which  are  intrusted  with  the  for- 
eign intercourse  of  the  Nation,  which  assert  and  maintain 
its  interest  against  foreign  powers,  have  unequivocally 
asserted  its  rights  of  dominion  over  a  country  of  which 
it  is  in  possession,  and  which  it  claims  under  a  treaty; 
if  the  legislature  has  acted  on  the  construction  thus  as- 
serted, it  is  not  in  its  own  courts  that  this  construction  is 
to  be  denied.  A  question  like  this  respecting  the  bound- 
aries of  nations  is,  as  has  been  truly  said,  more  a  political 
'  Foster  v.  Nelson,  2  Pet.  253,  307,  319. 


l68  THE  COURTS. 

than  a  legal  question;  and  in  its  discussion  the  courts  of 
every  country  must  respect  the  pronounced  will  of  the 
legislature. 

These  constructions  relate  to  questions  of  boundary 
between  independent  nations  and  have  no  application  to 
a  question  of  that  character  arising  between  the  general 
government  and  one  of  the  States  composing  the  Union, 
or  between  two  States  of  the  Union. 

At  the  time  of  the  adoption  of  the  Constitution, 
there  existed  controversies  between  eleven  States  in 
respect  to  boundaries  which  had  continued  from  the  first 
settlement  of  the  Colonies.  The  necessity  for  the  crea- 
tion of  some  tribunal  for  the  settlement  of  these  and  like 
controversies  that  might  arise  under  the  new  govern- 
ment to  be  formed  must  therefore  have  been  perceived 
by  the  framers  of  the  Constitution,  and  consequently 
among  the  controversies  to  which  the  judicial  power  of 
the  United  States  was  extended  by  the  Constitution  we 
find  those  between  two  or  more  States.  And  that  a  con- 
troversy between  two  or  more  States,  in  respect  to  bound- 
ary is  one  to  which,  under  the  Constitution,  such  judicial 
power  extends,  is  no  longer  an  open  question  in  the  Su- 
preme Court.* 

'■  Rhode  Island  v.  Massachusetts,  12  Pet.  657.  New  Jersey  v.  New- 
York,  5  Pet.  284,  290.  Missouri  v.  Iowa,  7  How.  660.  Florida  v. 
Georgia,  17  How.  473.  Alabama  v.  Georgia,  23  How.  505.  Virginia 
V.  West  Virginia,  11  Wall.  39,  55.  Missouri  v.  Kentucky,  11  Wall 
395.     Indiana  v.  Kentucky,  136  U.  S.  479.     Nebraska  v.  Iowa,  143 

u.  s.  357. 


THE   COURTS.  169 

In  New  Jersey  v.  New  York,  Chief  Justice  Marshall 
said :  "It  has  then  been  settled  by  our  predecessors,  on 
great  deliberation,  that  this  court  may  exercise  its  original 
jurisdiction  in  suits  against  a  State,  under  the  authority 
conferred  by  the  Constitution  and  existing  as  acts  of 
Congress."  And  in  Virginia  v.  West  Virginia,  it  was 
said  by  Mr.  Justice  Miller  to  be  the  established  doctrine 
of  the  Supreme  Court  "that  it  has  jurisdiction  of  ques- 
tions of  boundary  between  two  States  of  this  Union,  and 
that  this  jurisdiction  is  not  defeated  because  in  deciding 
that  question  it  becomes  necessary  to  examine  into  and 
construe  compacts  or  agreements  between  those  States, 
or  because  the  decree  which  the  court  may  render,  affects 
the  territorial  limits  of  the  political  jurisdiction  and  sov- 
ereignty of  the  States  which  are  parties  to  the  proceed- 
ing." So,  in  United  States  v.  Texas,  143  U.  S.  628, 
Mr.  Justice  Harland  used  the  following  language :  "The 
States  of  the  Union  have  agreed,  in  the  Constitution, 
that  the  judicial  power  of  the  United  States  shall  extend 
to  ALL  cases  arising  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  without  regard  to  the 
character  of  the  parties  (excluding,  of  course,  suits 
against  a  State  by  its  own  citizens  or  by  citizens  of  other 
States,  or  by  citizens  or  subjects  of  foreign  States),  and 
equally  the  Union  upon  an  equal  footing  in  all  respects 
with  the  other  States." 


170  THE  COURTS. 

But  there  are  few  other  cases  in  which  the  court  of 
the  United  States  has  decHned  its  aid,  although  they  are 
controversies  between  two  States. 

In  Towley  v.  Lindsey  and  Fowler  v.  Miller,  actions  of 
ejectment  were  pending  in  the  Circuit  Court  of  the  United 
States  for  the  district  of  Connecticut  between  private 
citizens  for  lands  over  which  the  States  of  Connecticut 
and  New  York  both  claimed  jurisdiction;  and  a  writ  of 
certiorari  to  remove  those  actions  into  the  Supreme  Court 
as  belonging  exclusively  to  its  jurisdiction,  was  refused, 
because  a  State  was  neither  nominally  nor  substantially 
a  party  to  them.'  Upon  a  bill  in  equity  afterwards  filed 
in  the  Supreme  Court  by  the  State  of  New  York  against 
the  State  of  Connecticut  to  stay  the  actions  of  ejectment, 
the  Supreme  Court  refused  the  injunction  prayed  for  be- 
cause the  State  of  New  York  was  not  a  party  to  them, 
and  had  no  such  interest  in  their  decisions  as  would  sup- 
port the  bill.* 

The  Supreme  Court  has  declined  to  take  jurisdiction 
of  suits  between  States  to  compel  the  preformance  of 
obligations  which,  if  the  States  had  been  independent 
nations,  could  not  have  been  enforced  judicially,  but  only 
through  the  political  departments  of  their  governments. 
Thus,  in  Kentucky  v.  Dennison,  where  the  State  of  Ken- 
tucky, by  her  governor,  applied  to  the  Supreme  Court 

'  3  Dall.  411. 

'  New  York  v.  Connecticut,  4  Dall.  i,  3. 


THE    COURTS.  I/I 

in  the  exercise  of  its  original  jurisdiction  for  a  writ  of 
mandamus  to  the  governor  of  Ohio,  to  compel  him  to 
surrender  a  fugitive  from  justice,  the  Supreme  Court, 
while  holding  that  the  case  was  a  controversy  between 
two  States,  decided  that  it  had  no  authority  to  grant  the 
writ.' 

Sec.  49.  Many  questions  might  arise  as  to  the  juris- 
diction of  the  Federal  Courts  over  controversies  "between 
a  State  and  citizens  of  another  State." 

The  object  of  vesting  in  the  court  of  the  United  States 
jurisdiction  of  suits  by  a  State  against  the  citizens  of  an- 
other was  to  enable  such  controversies  to  be  determined 
by  a  National  tribunal,  and  thereby  to  avoid  the  partiality, 
or  suspicion  of  partiality,  which  might  exist  if  the  plain- 
tiff State  were  compelled  to  resort  to  the  courts  of  the 
States  of  which  the  defendants  were  citizens. 

The  grant  is  of  "judicial  power"  and  was  not  intended 
to  confer  upon  the  court  of  the  United  States  jurisdiction 
of  a  suit  or  prosecution  by  one  State,  of  such  a  nature 
that  it  could  not,  on  the  settled  principles  of  public  and 
international  law,  be  entertained  by  the  judiciary  of  the 
other  State  at  all." 

Sec.  50.  "The  courts  of  no  country  execute  the  penal 
laws  of  another,"  stated  Chief  Justice  Marshall.  And 
this  maxim  applies  not  only  to  prosecutions  and  sentences 

'  Kentucky  v.  Dennison,  24  How.  66. 

'  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265. 


172  THE  COURTS. 

for  crimes  and  misdemeanors,  but  to  all  suits  in  favor  of 
the  State  for  the  recovery  of  pecuniary  penalties  for  any 
violation  of  statutes  for  the  protection  of  its  revenue,  or 
municipal  laws,  and  to  all  judgments  for  such  penalties. 
If  this  were  not  so,  all  that  would  be  necessary  to  give 
ubiquitous  effect  to  a  penal  law  would  be  to  put  the  claim 
for  a  penalty  into  the  shape  of  a  judgment. 

It  is  true  that  if  the  prosecution  in  the  courts  of  one 
country  for  a  violation  of  its  municipal  law  is  in  rem  to 
obtain  a  forfeiture  of  specific  property  within  its  juris- 
diction, a  judgment  of  forfeiture,  rendered  after  due 
notice,  and  vesting  the  title  of  the  property  in  the  State, 
will  be  recognized  and  upheld  in  the  courts  of  any  other 
country  in  which  the  title  to  the  property  is  brought  in 
issue.''  But  the  recognition  of  a  vested  title  in  property 
is  quite  different  from  the  enforcement  of  a  claim  for  a 
pecuniary  penalty.  In  the  one  case,  a  complete  title  in 
the  property  has  been  acquired  by  the  foreign  judgment; 
in  the  other,  further  judicial  action  is  sought  to  compel 
the  payment  by  the  defendant  to  the  plaintiff  of  money 
in  which  the  plaintiff  has  not  as  yet  acquired  any  specific 
right. 

The  application  of  the  rule  to  the  courts  of  the  several 
States  and  of  the  United  States  is  not  affected  by  the 
provisions  of  the  Constitution  and  of  the  Act  of  Congress 

^  Rose  V.  Himely,  4  Cranch,  241.     Hudson  v.  Guestier,  4  Cranch. 
293.     Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumner  600. 


Chief  Justice  and  Associate  Justices  of  the  Supreme  Court  of 
the  United  States,  1  906 


I.  Oliver  Wendell  Holmes,  of  Massachusetts,  Associate  Justice  of  the  United  Slates 
Supreme  Court,  was  professor  of  Harvard  University  and  Chief  Justice  of  the 
State  Supreme  Judicial  Circuit  Court.  He  is  an  alumnus  of  Yale  and  Har- 
vard Universities. 

2.  Rufus  W.  Peckham,  of  New  York,  Associate  Justice  of  the  United  States  Supreme 

Court,  was  county  District  Attorney,  an  Albany  Corporation  Counsel,  a  Justice 
of  the  Supreme  Court  and  a  Justice  of  the  Court  of  Appeals  of  his  State.  He 
was  educated  at  the  public  schools  of  Philadelphia  and  the   Albany   Academy. 

3.  Joseph  McKenna,  of  San  Francisco,  Associate  Justice  of  the  United  States  Supreme 

Court,  was  Solano  County  District  Attorney,  a  member  of  the  State  Legislature, 
a  United  States  Representative,  a  United  States  Circuit  Judge,  and  a  United 
States  Attorney  General.  He  was  educated  at  St.  Joseph's  College,  and  the 
Collegiate   Institute. 

4.  William  R.  Day,  of  Ohio,  Associate  Justice  of  the  United  States   Supreme  Court, 

was  Judge  of  the  Court  of  Common  Pleas,  the  United  States  District  Judge, 
Secretary  of  State  of  the  United  States,  Chairman  of  the  Spanish-American 
Peace  Commission,  and  the  United  States  Circuit  Judge.  He  is  a  graduate  of 
the  University  of  Michigan. 

5.  Henry  Billings  Brown,  of  Massachusetts,    (just  retired).  Associate  Justice  of  the 

United  States  Supreme  Court,  was  the  State  Circuit  Judge,  the  United  States 
Marshal,  the  United  States  Attorney,  the  United  States  and  District  Judge.  He 
is  an  alumnus  of  Yale,  Harvard  and  Michigan  Universities. 

6.  John  Marshall  Harlan,  of  Kentucky,  Associate  Justice  of  the  United  States  Supreme 

Court,  was  a  County  Judge  of  his  State,  a  candidate  for  Governor  and  also  a 
candidate  for  the  Vice-Presidency.  He  was  also  Chairman  of  the  State  Dele- 
gation to  the  Republican  National  Convention.  He  is  an  alumnus  of  the  Center 
College  and  the   Pennsylvania  University. 

7.  Melville   Weston   Fuller,   of   Illinois,   Chief  Justice   of   the   United   States   Supreme 

Court,  was  a  member  of  the  State  Constitutional  Convention,  of  the  State  Legis- 
lature, and  also  a  delegate  to  the  Democratic  National  Convention.  He  is  an 
alumnus  of  the  Northwestern  University,  Bowdoin  College,  Yale  and  Harvard 
Universities,   and   also   Dartmouth   College. 

8.  David  Josiah  Brewer,  of  Kansas,  Associate  Justice  of  the  United  States  Supreme 

Court,  was,  in  his  State,  County  Attorney,  the  United  States  Commissioner, 
the  Judge  of  the  Probate  and  Criminal  Courts,  the  Justice  of  the  State  Supreme 
Court,  the  United  States  District,  and  also  the  United  States  Circuit  Court 
Judge.  He  is  a  graduate  of  Y'ale  University  and  the  Albany  Law  School. 

9.  Edward    Douglass   White,   of   Louisiana,    Associate   Justice   of   the    United    States 

Supreme  Court,  was  State  Senator,  State  Supreme  Court  Justice,  and  a 
United  States  Senator.  He  was  educated  in  Georgetown  University  at  Wash- 
ington, D.  C. 


THE  COURTS.  I75 

by  which  the  judgments  of  the  courts  of  any  State  are  to 
have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  of  usage 
in  the  State  in  which  they  were  rendered.  Those  pro- 
visions estabhsh  a  rule  of  evidence,  rather  than  of  juris- 
diction. While  they  make  the  record  of  a  judgment 
rendered  after  due  notice  in  one  State,  conclusive  evidence 
in  the  courts  of  another  State,  or  of  the  United  States, 
of  the  matter  adjudged  they  do  not  effect  the  jurisdiction, 
either  of  the  court  in  which  the  judgment  is  rendered, 
or  of  the  court  in  which  it  is  offered  in  evidence. 

Sec.  51.  Mr.  Justice  Iredell  said:  "But  in  respect  to 
the  subject-matter  upon  which  such  jurisdiction  is  to  be 
exercised,  used  the  word  'controversies'  only.'  The  Act 
of  Congress  more  particularly  mentions  civil  controver- 
sies, a  qualification  of  the  general  word  in  the  Constitu- 
tion, which  I  do  not  doubt  every  reasonable  man  will 
think  was  well  warranted,  for  it  can  not  be  presumed  that 
the  general  word  'controversies'  was  intended  to  include 
any  proceedings  that  relate  to  criminal  cases,  which,  in 
all  instances  that  respect  the  same  government  only,  are 
uniformly  considered  of  a  local  nature,  and  to  be  de- 
cided by  its  particular  laws."  Chief  Justice  Jay,  in  sum- 
ming up  the  various  classes  of  cases  to  which  the  judicial 
power  of  the  United  States  extends,  used  "demands" — 

*  Chisholm  v.  Georgia,  2  Dall.  419. 


176  THE  COURTS. 

a  word  quite  inappropriate  to  designate  criminal  or  penal 
proceedings — as  including  everything  that  a  State  could 
prosecute  against  citizens  of  another  State  in  a  National 
court. 

Original  jurisdiction  of  the  Supreme  Court  is  con- 
ferred by  the  Constitution,  without  limit  of  the  amount  in 
controversy,  and  Congress  has  never  imposed — if,  in- 
deed, it  could  impose — any  such  limit.  If  the  Supreme 
Court  has  original  jurisdiction  of  any  case,  it  must  follow 
that  any  action  upon  a  judgment  obtained  by  a  State  in 
her  own  courts  against  a  citizen  of  another  State  for  the 
recovery  of  any  sum  of  money,  however  small,  by  way 
of  a  fine  for  any  offence  however  petty,  against  her  laws 
could  be  brought  in  the  first  instance  in  the  Supreme 
Court  of  the  United  States.  That  can  not  have  been  the 
intention  of  the  convention  in  framing,  or  of  the  people 
in  adopting,  the  Federal  Constitution.^ 

Sec.  52.  As  to  controversies  "between  citizens  of  the 
different  States,"  under  the  act  of  Congress  in  Circuit 
Courts  of  the  United  States  should  have  original  cogniz- 
ance of  all  suits  of  a  civil  nature  at  common  law  or  in 
equity  in  which  there  should  be  a  controversy  between 
citizens  of  different  States. 

In  Strawbridge  v.  Curtis,"*  it  was  held  that  if  there  be 
two  or  more  joint  plaintiffs  and  two  or  more  joint  de- 

^  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265. 
'  Strawbridge  v.  Curtis,  3  Cranch.  267. 


THE  COURTS.  177 

fendants  each  of  the  plaintiffs  must  be  capable  of  suing 
each  of  the  defendants  in  the  courts  of  the  United  States 
in  order  to  support  the  jurisdiction.  This  decision  was 
followed  by  later  cases  in  which  it  was  held  that  the 
courts  of  the  United  States  have  no  jurisdiction,  on  the 
ground  of  diverse  citizenship  if  there  are  two  plaintiffs 
to  the  action  who  are  citizens  of  and  residents  in  differ- 
ent States,  and  the  defendant  is  a  citizen  of  and  resident 
in  a  third  State,  and  the  action  is  brought  in  the  State  in 
which  one  of  the  plaintiffs  resides. 

And  in  the  case  of  Hooe  v.  Jamieson,  '  which  was  an 
action  of  ejectment  brought  in  the  Circuit  Court  of  the 
United  States  for  the  Western  district  of  Wisconsin,  by 
the  complainant,  in  which  plaintiffs  in  error  alleged  that 
they  resided  in  and  were  citizens  of  the  city  of  Washing- 
ton, D.  C,  and  that  defendants  all  resided  in  and  were 
citizens  of  the  State  of  Wisconsin,  Mr.  Chief  Justice 
Fuller  delivered  the  opinion  of  the  court  and  said :  "We 
see  no  reason  for  arriving  at  any  other  conclusion  than 
that  announced  by  Chief  Justice  Marshall  in  Hepburn  v. 
Elley,  2  Cranch.  445,  February  term,  1805,  'that  the 
members  of  the  American  Confederacy  only  are  the 
States  contemplated  in  the  Constitution.'  That  the  Dis- 
trict of  Columbia  is  not  a  State  within  the  meaning  of 
that  instrument ;  and  that  the  courts  of  the  United  States 
*  Hooe  V.  Jamieson,  166  U.  S.  395. 


178  THE  COURTS. 

have  no  jurisdiction  of  cases  between  citizens  of  the  Dis- 
trict of  Columbia  and  citizens  of  a  State." 

Sec.  53.  As  suits  against  States:  by  the  judiciary  act 
of  1789,  the  Supreme  Court  was  given  original  jurisdic- 
tion of  all  controversies  of  civil  nature  between  a  State 
and  citizens  of  other  States  or  alien,  and  exclusive  juris- 
diction where  a  State  is  a  party. 

Such  being  the  condition  of  the  law,  a  most  important 
and  interesting  case  has  taken  place.  Alexander  Chis- 
holm,  as  executor  of  Robert  Farquer,  commenced  an  ac- 
tion of  assumpsit  in  the  Supreme  Court  against  the  State 
of  Georgia,  and  process  was  served  on  the  Governor  and 
Attorney  General.  On  the  nth  of  August,  1792,  after 
a  process  was  thus  served,  Mr.  Randolph,  the  Attorney- 
General  of  the  United  States,  as  counsel  for  the  plain- 
tiff, moved  for  a  judgment  by  default  on  the  fourth  day 
of  the  next  term,  unless  the  State  should  then,  after  no- 
tice, show  cause  to  the  contrary.  At  the  next  term,  Mr. 
Ingersoll  and  Mr.  Dallas  presented  a  written  remon- 
strance and  protestation  on  behalf  of  the  State  against 
the  exercise  of  jurisdiction,  but  in  consequence  of  posi- 
tive instructions  they  declined  to  argue  the  question.  Mr. 
Randolph  thereupon  proceeded  alone,  and  in  opening  his 
argument  said  that  he  did  not  want  the  remonstrance 
of  Georgia  to  satisfy  him  that  the  motion  which  he  had 
made  is  unpopular,  before  the  remonstrance  was  read. 


THE  COURTS.  179 

he  had  learned  from  the  acts  of  another  State,  whose 
will  must  always  be  dear  to  him,  that  she  too  con- 
demned it. 

On  the  19th  of  February,  1793,  the  judgment  of  the 
Supreme  Court  was  announced,  and  the  jurisdiction  sus- 
tained, four  of  the  justices  being  in  favor  of  granting 
the  motion  and  one  against  it.  All  justices  who  heard 
the  case  filed  opinions  some  of  which  were  very  elaborate, 
and  it  is  evident  the  subject  received  the  most  careful 
consideration. 

Mr.  Justice  Wilson  in  his  opinion  uses  this  language: 
"Another  declared  object  (of  the  Constitution)  is,  'to 
establish  justice.'  This  points,  in  a  particular  manner, 
to  the  judicial  authority.  And  when  we  view  this  object 
in  conjunction  with  the  declaration,  'that  no  State  shall 
pass  a  law  impairing  the  obligation  of  contract,'  we  shall 
probably  think  that  this  object  points  in  a  particular 
manner  to  the  jurisdiction  of  the  court  over  the  several 
States.  What  good  purpose  could  this  constitutional 
provision  secure,  if  a  State  might  pass  a  law  impairing 
such  a  violation  or  right,  to  no  controlling  power"? 
And  Chief  Justice  Jay:  "The  extension  of  the  judiciary 
power  of  the  United  States  to  such  controversies,  appears 
to  me  to  be  wise,  because  it  is  honest  and  because  it  is 
useful.  It  is  honest,  because  it  provides  for  doing  jus- 
tice without  respect  to  persons,  and  by  securing  individ- 


l80  THE  COURTS. 

ual  citizens,  as  well  as  States,  in  their  respective  rights, 
performs  the  promise  which  every  free  government  makes 
to  every  free  citizen,  of  equal  justice  and  protection.  It 
it  useful,  because  it  is  honest,  because  it  leaves  not  even 
the  most  obscure  and  friendless  citizen  without  means 
of  obtaining  justice  from  a  neighboring  State ;  because  it 
obviates  occasions  of  quarrels  between  States  on  account 
of  the  claims  of  their  respective  citizens,  because  it  recog- 
nizes and  strongly  rests  on  this  great  moral  truth,  that 
the  justice  is  the  same  whether  due  from  one  man  to  a 
million,  or  from  a  million  to  one  man ;  because  it  teaches 
and  greatly  appreciates  the  value  of  our  free  republican 
national  government,  which  places  all  our  citizens  on  an 
equal  footing,  and  enables  each  and  every  one  of  them  to 
obtain  justice  without  any  danger  of  being  overborne 
with  the  might  and  number  of  their  opponents;  and  be- 
cause it  brings  into  action,  and  enforces  the  great  and 
glorious  principle  that  the  people  are  the  sovereigns  of 
this  country,  and  consequently  that  fellow  citizens  and 
joint  sovereigns  can  not  be  delegated  by  appearing  with 
each  other  in  their  own  courts  to  have  their  controversies 
determined." 

Prior  to  this  decision,  the  public  discussions  had  been 
confined  to  the  power  of  the  court,  under  the  Constitu- 
tion, to  entertain  a  suit  in  favor  of  a  citizen  against  a 
State;  many  of  the  leading  members  of  the  convention 


THE  COURTS.  l8l 

arguing  with  great  force  against  it.  As  soon  as  the  de- 
cision was  announced,  steps  were  taken  to  obtain  an 
amendment  of  the  Constitution  withdrawing  jurisdiction. 
And  on  the  8th  of  January,  1798,  the  Eleventh  Amend- 
ment to  the  Constitution,  proposed  and  ratified  by  the 
requisite  number  of  States,  went  into  effect.  That 
amendment  is  as  follows : 

"The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  and  subjects 
of  any  foreign  power." 

Sec.  54.  Afterward,  it  was  contended  that,  notwith- 
standing the  prohibition  of  the  amendment,  the  States 
may  prosecute  the  suits,  because,  as  "the  sovereign  trustee 
of  its  citizens,"  a  State  is  "clothed  with  right  and  faculty 
of  making  an  imperative  demand  upon  another  indepen- 
dent State  for  the  payment  of  debts  which  it  owes  to  citi- 
zens of  the  former."  ^  There  is  no  doubt  but  one  nation 
may,  if  it  sees  fit,  demand  of  another  nation  the  payment 
of  debts  owing  by  the  latter  to  a  citizen  of  the  former. 
Such  power  is  well  recognized  as  an  evidence  of  National 
sovereignty,  but  it  involves  also  the  National  powers  of 
levying  war  and  making  peace.  But  the  States  are  not 
Nations.     They  are  sovereign  within  their  spheres,  but 

*  New  Hampshire  v.  Louisiana,  108  U.  S.  "j^. 


l82  THE  COURTS. 

their  sovereignty  stops  short  of  nationahty.  They  can 
neither  make  war  nor  peace  without  the  consent  of  the 
National  government. 

It  is  also  claimed  that  even  if  a  State  did  surrender  to 
the  National  government  its  power  of  prosecuting  the 
claims  of  the  citizens  against  another  State  by  force,  it 
got  in  lieu  the  constitutional  right  of  suit  in  the  National 
courts. 

There  is  no  principle  of  international  law  which  makes 
it  the  duty  of  one  Nation  to  assume  the  collection  of  the 
claims  of  its  citizens  against  another  Nation,  if  the  citi- 
zens themselves  have  ample  means  of  redress  without 
the  intervention  of  their  government.  There  is  no  ne- 
cessity for  power  in  his  State  to  sue  in  his  behalf,  when  he 
can  sue  for  himself.  Therefore,  the  special  remedy 
granted  to  the  citizen,  himself,  must  be  deemed  to  have 
been  the  only  remedy  the  citizens  of  one  State  could  have 
under  the  Constitution  against  another  State  for  redress 
of  his  grievances,  except  such  as  the  delinquent  State 
law  saw  fit  itself  to  grant. 

Sec.  55.  Among  the  unwritten  understanding  of  the 
American  Constitution,  perhaps  the  most  jealously  con- 
tended and  contested  things  in  the  United  States  Supreme 
Court  are  religious  liberty;  security  of  the  dwell- 
ing, and  of  persons  and  papers;  prohibition  of  slavery; 


THE  COURTS.  183 

guaranties  of  life,  liberty,  and  equality;  and  equal  pro- 
tection of  the  laws. 

As  to  religious  liberty,  the  United  States  Supreme  Court, 
through  Mr.  Chief  Justice  Waite,  had  amply  discussed 
that  Congress  can  not  pass  a  law  for  the  government 
of  the  Territories  which  shall  prohibit  the  free  exercise 
of  religion.  The  first  amendment  to  the  Constitution 
expressly  forbids  such  legislation.  Religious  freedom 
is  guaranteed  everywhere  throughout  the  United  States, 
so  far  as  congressional  interference  is  concerned. 

The  word  "religion"  is  not  defined  in  the  Constitution. 
We  must  go  elsewhere,  therefore,  to  ascertain  its  mean- 
ing, and  nowhere  more  appropriately,  we  think,  than  to 
the  history  of  the  times  in  the  midst  of  which  the  pro- 
vision was  adopted.  The  precise  point  of  the  inquiry  is : 
What  is  the  religious  freedom  which  has  been  guaranteed  ? 

Before  the  adoption  of  the  Constitution,  attempts  were 
made  in  some  of  the  Colonies  and  States  to  legislate,  not 
only  in  respect  to  the  establishment  of  religion,  but  in 
respect  to  its  doctrines  and  precepts  as  well.  The  people 
were  taxed,  against  their  will,  for  the  support  of  religion, 
and  sometimes  for  the  support  of  particular  sects  to  whose 
tenets  they  could  not  and  did  not  subscribe.  Punishments 
were  prescribed  for  a  failure  to  attend  upon  public  wor- 
ship, and  sometimes  for  entertaining  heretical  opinions. 
The  controversy  upon  this  general  subject  was  animated 


184  THE  COURTS. 

in  many  of  the  States,  but  seemed  at  last  to  culminate  in 
Virginia.  In  1784,  the  House  of  Delegates  of  that  State 
having  under  consideration  "a  bill  establishing  provision 
for  teachers  of  the  Christian  religion,"  postponed  it  un- 
til the  next  session,  and  directed  that  the  bill  should  be 
published  and  distributed,  and  that  the  people  be  re- 
quested to  signify  their  opinion  respecting  the  adoption 
of  such  a  bill  at  the  next  session  of  assembly. 

This  brought  out  a  determined  opposition.  Amongst 
others,  Mr.  Madison  prepared  a  "Memorial  and  Remon- 
strance," which  was  widely  circulated  and  signed,  and  in 
which  he  demonstrated  "that  religion,  or  the  duty  we 
owe  the  Creator,"  was  not  within  the  cognizance  of  civil 
government,  Semple's  Virginia  Baptists,  Appendix,  At 
the  next  session  the  proposed  bill  was  not  only  defeated, 
but  another,  "for  establishing  religious  freedom,"  drafted 
by  Mr.  Jefferson,  was  passed.^ 

In  the  preamble  of  this  act"  religious  freedom  is  de^ 
fined  and  after  a  recital  "that  to  suffer  the  civil  magis- 
trate to  intrude  his  powers  into  the  field  of  opinion,  and 
to  restrain  the  profession  or  propagation  of  principles  on 
supposition  of  their  ill  tendency,  is  a  dangerous  fallacy 
which  at  once  destroys  all  religious  liberty,"  it  is  de- 
clared "that  it  is  time  enough  for  the  rightful  purposes 
of  civil  government  for  its  officers  to  interfere  when  prin- 

^  I  Jeff.  Works,  45;  2  Howison,  Hist,  of  Va.,  298. 
'  12  Hening's  Stat.,  84. 


THE  COURTS.  185 

ciples  break  out  into  overt  acts  against  peace  and  for  or- 
der." In  these  two  sentences  is  found  the  true  distinction 
between  what  properly  belongs  to  the  church  and  what 
to  the  State. 

In  little  more  than  a  year  after  the  passage  of  this 
statute  the  convention  met  which  prepared  the  Constitu- 
tion of  the  United  States.  Of  this  convention  Mr.  Jeffer- 
son was  not  a  member,  he  being  then  absent  as  minister 
to  France.  As  soon  as  he  saw  the  draft  of  the  Consti- 
tution proposed  for  adoption,  he,  in  a  letter  to  a  friend, 
expressed  his  disappointment  at  the  absence  of  an  express 
declaration  insuring  the  freedom  of  religion,'  but  was 
willing  to  accept  it  as  it  was,  trusting  that  the  good  sense 
and  honest  intentions  of  the  people  would  bring  about 
the  necessary  alterations.^  Five  of  the  States,  while 
adopting  the  Constitution,  proposed  amendments.  Three 
— New  Hampshire,  New  York,  and  Virginia — included 
in  one  form  or  another  a  declaration  of  religious  freedom 
in  the  changes  they  desired  to  have  made,  as  did  also 
North  Carolina,  where  the  convention  at  first  declined  to 
ratify  the  Constitution  until  the  proposed  amendments 
were  acted  upon.  Accordingly,  at  the  first  session  of  the 
first  Congress  the  amendment  now  under  consideration 
was  proposed  with  others  by  Mr.  Madison.  It  met  the 
views  of  the  advocates  of  religious  freedom,  and  was 

^  2  Jeff.  Works,  355. 
"  Jeff.  Works,  79. 


186  THE  COURTS. 

adopted.  Mr.  Jefferson  afterwards,  in  reply  to  an  ad- 
dress to  him  by  a  committee  of  the  Danbury  Baptist  As- 
sociation, took  occasion  to  say :  "Believing  with  you  that 
religion  is  a  matter  which  lies  solely  between  man  and  his 
God ;  that  he  owes  account  to  none  other  for  his  faith  or 
his  worship;  that  the  legislative  powers  of  the  govern- 
ment reach  actions  only,  and  not  opinions, — I  contemplate 
with  sovereign  reverence  that  act  of  the  whole  American 
people  which  declared  that  their  legislature  should  'make 
no  law  respecting  an  establishment  of  religion  or  pro- 
hibiting the  free  exercise  thereof,'  thus  building  a  wall 
of  separation  between  church  and  State.  Adhering  to 
this  expression  of  the  Supreme  will  of  the  nation  in  behalf 
of  the  rights  of  conscience,  I  shall  see  with  satisfaction 
the  progress  of  those  sentiments  which  tend  to  restore 
man  to  all  his  natural  rights,  convinced  he  has  no  na- 
tural right  in  opposition  to  his  social  duties."  Coming  as 
this  does  from  an  acknowledged  leader  of  the  advocates 
of  the  measure,  it  may  be  accepted  almost  as  an  author- 
itive  declaration  of  the  scope  and  effect  of  the  amend- 
ment thus  secured.  Congress  was  deprived  of  all  legis- 
lative power  over  mere  opinion,  but  was  left  free  to  reach 
actions  which  were  in  violation  of  social  duties  or  sub- 
version of  good  order.' 

Sec.  56.  In  order  to  ascertain  what  is  said  to  be  in- 
'  Raynold  v.  U.  S.,  98  U.  S.  145. 


THE  COURTS.  187 

tended  by  the  Fourth  Amendment  to  the  Constitution 
under  the  terms  "Unreasonable  searches  and  seizures," 
it  is  only  necessary  to  recall  the  contemporary  or  then  re- 
cent history  of  the  controversies  on  the  subject,  both  in 
the  United  States  and  in  England.  Mr,  Justice  Bradley 
was  instructed  to  say  by  the  United  States  Supreme  Court, 
that  the  practice  had  obtained  in  the  Colonies  of  issuing 
writs  of  assistance  to  the  revenue  officers,  empowering 
them,  in  their  discretion,  to  search  suspected  places  for 
smuggled  goods,  which  James  Otis  pronounced  "the 
worst  instrument  of  arbitrary  power,  the  most  destructive 
of  English  liberty,  and  the  fundamental  principles  of  law, 
that  ever  was  found  in  an  English  law  book" ;  since  they 
placed  "the  liberty  of  every  man  in  the  hands  of  every 
petty  officer."  This  was  in  February,  1761,  in  Boston^ 
and  the  famous  debate  in  which  it  occurred  was  perhaps 
the  most  prominent  event  which  inaugurated  the  resist- 
ence  of  the  colonies  to  the  oppressions  of  the  mother 
country.  "Then  and  there,"  said  John  Adams,  "was 
the  first  scene  of  the  first  act  of  opposition  to  the  arbi- 
trary claims  of  Great  Britain.  Then  and  there  the  child 
Independence  was  born." 

These  things,  and  the  events  which  took  place  in  Eng- 
land immediately  following  the  argument  about  writs  of 
assistance  in  Boston,  were  fresh  in  the  memories  of  those 
who  achieved  the  American  independence  and  established 


l88  THE  COURTS. 

the  American  form  of  government.  In  the  period  from 
1762,  when  the  "North  Briton"  was  started  by  John 
Wilkes,  to  April,  1766,  when  the  House  of  Commons 
passed  resolutions  condemnatory  of  general  warrants, 
whether  for  the  seizure  of  persons  or  papers,  occurred 
the  bitter  controversy  between  the  English  government 
and  Wilkes,  in  which  the  latter  appeared  as  the  champion 
of  popular  rights,  and  was,  indeed,  the  pioneer  in  the  con- 
test which  resulted  in  the  abolition  of  some  grievous 
abuses  which  had  gradually  crept  into  the  administration 
of  public  affairs.  Prominent  and  principal  among  these 
was  the  practice  of  issuing  general  warrants  by  the  Sec- 
retary of  State,  for  searching  private  houses  for  the  dis- 
covery and  seizure  of  books  and  papers  that  might  be 
used  to  convict  their  owner  of  the  charge  of  libel.  Cer- 
tain numbers  of  the  "North  Briton,"  particularly  No.  45, 
had  been  very  bold  in  denunciation  of  the  government, 
and  were  esteemed  heinously  libellous.  By  authority  of 
the  Secretary's  warrant  Wilke's  house  was  searched,  and 
his  papers  were  indiscriminately  seized.  For  this  outrage 
he  sued  the  perpetrators  and  obtained  a  verdict  of  £1,000 
against  Wood,  one  of  the  party  who  made  the  search,  and 
£4,000  against  Lord  Halifax,  the  Secretary  of  State,  who 
issued  the  warrant.  The  case,  however,  which  will  al- 
ways be  celebrated  as  being  the  occasion  of  Lord  Cam- 
den's memorable  discussion  of  the  subject,  was  that  of 


THE  COURTS.  1 89 

Entick  V.  Carrington  and  Three  Other  King's  Messen- 
gers, reported  at  length  in  19  Howell's  State  Trials,  1029. 
The  action  was  trespass  for  entering  the  plaintiff's  dwell- 
ing-house in  November,  1762,  and  breaking  open  his 
desks,  boxes,  etc.,  and  searching  and  examining  his  pa- 
pers. The  jury  rendered  a  special  verdict,  and  the  case 
was  twice  solemnly  argued  at  the  bar.  Lord  Camden 
pronounced  the  judgment  of  the  court  in  Michaelmas 
Term,  1765,  and  the  law  as  expounded  by  him  has  been 
regarded  as  settled  from  that  time  to  this,  and  his  great 
judgment  on  that  occasion  is  considered  as  one  of  the 
landmarks  of  English  liberty.  It  was  welcomed  and  ap- 
plauded by  the  lovers  of  liberty  in  the  Colonies  as  well  as 
in  the  mother  country.  It  is  regarded  as  one  of  the  per- 
manent monuments  of  the  British  Constitution,  and  is 
quoted  as  such  by  the  English  authorities  on  that  sub- 
ject down  to  the  present  time.* 

Sec.  57.  Robertson  and  the  other  petitioners  were  sail- 
ors on  board  the  Arago,  and  having  deserted  the  ves- 
sel in  violation  of  their  contract  as  seamen  they  had  been 
returned  to  said  vessel  against  their  will  and  by  force, 
under  the  provisions  of  Congressional  Act  and  it  is 
claimed  that  section  which  provides  a  punishment  of  im- 
prisonment for  desertion  by  any  seamen,  is  unconstitu- 

^  Boyd  V.  U.  S.,  116  U.  S.  616. 


1 90  THE  COURTS. 

tional  under  the  Thirteenth  Amendment  to  the  Federal 
Constitution,  as  involving  involuntary  servitude.* 

The  prohibition  of  slavery,  in  the  Thirteenth  Amend- 
ment, is  well  known  to  have  been  adopted  with  reference 
to  a  state  of  affairs  which  had  existed  in  certain  States 
of  the  Union  since  the  foundation  of  the  government, 
while  the  addition  of  the  words  "involuntary  servitude" 
were  said  in  the  Slaughter-house  Cases,  i6  Wall.  36,  to 
have  been  intended  to  cover  the  system  of  Mexican  peon- 
age and  the  Chinese  coolie  trade,  the  practical  operation 
of  which  might  have  been  a  revival  of  the.  institution  of 
slavery  under  a  different  and  less  offensive  name.  It  is 
clear,  however,  that  the  amendment  was  not  intended  to 
introduce  any  novel  doctrine  with  respect  to  certain  de- 
scriptions of  service  which  have  always  been  treated  as 
exceptional,  such  as  military  and  naval  enlistments,  or  to 
disturb  the  right  of  parents  and  guardians  to  the  custody 
of  their  minor  children  or  wards. 

The  amendments,  however,  make  no  distinction  be- 
tween a  public  and  a  private  service.  To  say  that  persons 
engaged  in  a  public  service  are  not  within  the  amendment 
is  to  admit  that  there  are  exceptions  to  its  general  lan- 
guage, and  the  further  question  is  at  once  presented, 
where  shall  the  line  be  drawn?  We  know  of  no  better 
answer  to  make  than  to  say  that  services  which  have  from 
^  Robertson  v.  Baldwin,  165  U.  S.  275. 


UNITED     STATES     AND     STATE     JUDGES 


The  United  States  and  State  Judges 


1.  John  Kelvey  Richards,  Judge  of  the  Circuit  Court  of  the  United  States  for  the  dis- 

trict of  the  State  of  Ohio.  Graduate  of  Swarthmore  College  and  Harvard 
University.     United    States    Solicitor    General    1897-1903. 

2.  Francis  E.  Baker,  Judge  of  the  Circuit  Court  of  the  United  States  for  the  district 

of  the  State  of  Indiana.  Graduate  of  State  University  of  Indiana  and  Univer- 
sity of  Michigan.     Judge  of  the   Supreme   Court  of  Indiana. 

3.  William  W.  Morrow,  Judge  of  the  Circuit  Court  of  the  United  States  for  the  dis- 

trict of  California.     Alumni :  Wahash  College  of  Indiana.  Was  special  counsel 

for    the    United    States    before    French    and    American  Claims    Commission, 

and  also  counsel  before  Alabama  Claims  Commission.  Was  Representative 
in   Congress, 

4.  Charles    Holland    Duell,    Associate    Justice    Court    of    Appeals,    D.    C.      (Resigned 

September,  1906,  to  engage  in  private  practice.)  Graduate  of  Hamilton  Col- 
lege Law  School.     Ex-Commissioner  of  Patents. 

5.  Seth  Shepard,  Chief  Justice  of  the  Court  of  Appeals  of  the  District  of  Columbia. 

Alumni :  Washington  and  Lee  L^niversity  and  Georgetown  University.  Is 
professor  in  the  latter. 

6.  Louis  E.  McComas,  Associate  Justice  Court  of  Appeals.     xAlumni :  St.  James  Col- 

lege and  Dickinson  College.  Was  LInited  States  Senator  from  Maryland. 
Professor  in  Georgetown  University. 

7.  George  Gray,  Judge  of  the  Circuit  Court  of  the  United   States  for  the  district  of 

Delaware.  Alumni :  Princeton  and  Harvard  Universities.  Was  Attorney 
General  for  Delaware,  and  also  United  States  Senator  from  that  State,  mem- 
ber of  the  American  Peace  Commision,  Paris;  and  member  of  tlie  International 
Permanent  Court  of  Arbitration  under  the  Hague  Convention. 

8.  Harry  M.  Clabaugh,  Chief  Justice  of  the  Supreme  Court  of  the  District  of  Colum- 

bia. Dean  of  Georgetown  University  Law  School.  Government  Delegate, 
Universal  Congress  Lawyers  and  Jurists,  St.  Louis,  1904.  Was  Attorney 
General    for   the    State    of    Maryland.     Graduate    of    College    at    Gettysburg. 

9.  Jeter  Connelly  Pritchard,  Judge  of  the  United  States  Circuit  Court  for  the  district 

of  the  State  of  North  Carolina.     Was  Associate  Justice  of  the  Supreme  Court 
of  the  District  of  Columbia,   1903.     Common   school  education. 
10.  Alston  Gordon  Dayton,  Judge  of  the  United  States  District  Court  for   Northern 
District   of   the    State    of    West   Virginia.     Graduate   of    University    of    West 
Viro-inia.     Was   Representative   in   Congress   from  West  Virginia. 


THE  COURTS.  193 

time  immemorial  been  treated  as  exceptional  shall  not 
be  regarded  as  within  its  purview. 

From  the  earliest  historical  period  the  contract  of  the 
sailor  has  been  treated  as  an  exceptional  one,  and  in- 
volving, to  a  certain  extent,  the  surrender  of  his  personal 
liberty  during  the  life  of  the  contract.  Indeed,  the  busi- 
ness of  navigation  could  scarcely  be  carried  on  without 
some  guaranty,  beyond  the  ordinary  civil  remedies  upon 
contract,  that  the  sailor  will  not  desert  the  ship  at  a 
critical  moment,  or  leave  her  at  some  place  where  sea- 
men are  impossible  to  be  obtained — as  Molloy  forcibly 
expresses  it,  "to  rot  in  her  neglected  brine."  Such  de- 
sertion might  involve  a  long  delay  of  the  vessel  while 
the  master  is  seeking  another  crew,  an  abandonment  of 
the  voyage,  and,  in  some  cases,  the  safety  of  the  ship 
itself.  Hence  the  laws  of  nearly  all  maritime  nations 
have  made  provision  for  securing  the  personal  attendance 
of  the  crew  on  board,  and  for  their  criminal  punishment 
for  desertion,  or  absence  without  leave  during  the  life 
of  the  shipping  articles. 

Sec.  58.  It  was  contended  that  a  summary  proceeding 
against  an  attorney  to  exclude  him  from  the  practice  of 
his  profession  on  account  of  acts  for  which  he  may  be 
indicted  and  tried  by  a  jury  is  in  violation  of  the  Fifth. 
Amendment  of  the  Constitution  which  forbids  the  de- 
priving of  any  person  of  life,  liberty,  or  property,  without: 


194  THE   COURTS. 

due  process  of  law.  To  this  contention  it  is  to  be  an- 
swered by  the  language  of  Mr.  Justice  Bradley:  "But 
the  action  of  the  court  in  cases  within  its  jurisdiction  is 
due  process  of  law.  It  is  regular  and  lawful  method  of 
proceeding,  practised  from  time  immemorial.  Conced- 
ing that  an  attorney's  calling  or  profession  is  his  property, 
within  the  true  sense  and  meaning  of  the  Constitution, 
it  is  certain  that  in  many  cases,  at  least,  he  may  be  ex- 
cluded from  the  pursuit  of  it  by  the  summary  action  of 
the  court  of  which  he  is  an  attorney.  The  extent  of  the 
jurisdiction  is  a  subject  of  fair  judicial  consideration. 
That  it  embraces  many  cases  in  which  the  offence  is 
indictable  is  established  by  an  overwhelming  weight  of 
authority.  This  being  so,  the  question  whether  a  particu- 
lar class  of  cases  of  misconduct  is  within  its  scope,  can 
not  involve  any  constitutional  principle. 

It  is  a  mistaken  idea  that  due  process  of  law  requires 
a  plenary  suit  and  a  trial  by  jury,  in  all  cases  where 
property  or  personal  rights  are  involved.  The  important 
right  of  personal  liberty  is  generally  determined  by  a 
single  judge,  on  a  writ  of  habeas  corpus  using  affidavits 
or  depositions  for  proofs,  where  facts  are  to  be  estab- 
lished. Assessments  for  damages  and  benefits  occasioned 
by  public  improvements  are  usually  made  by  commis- 
sioners in  a  summary  way.  Conflicting  claims  of  cred- 
itors, amounting  to  thousands  of  dollars,  are  often  set- 


THE  COURTS.  I95 

tied  by  the  courts  on  affidavits  or  depositions  alone.  And 
the  courts  of  chancery,  bankruptcy,  probate,  and  admiral- 
ty administer  an  immense  field  of  jurisdiction  without 
trial  by  jury.  In  all  cases  that  kind  of  procedure  is  due  pro- 
cess of  law  which  is  suitable  and  proper  to  the  nature  of 
the  case,  and  sanctioned  by  the  established  customs  and 
usages  of  the  courts.  "Perhaps  no  definition,"  says  Judge 
Cooley,  "is  more  often  quoted  than  that  given  by  Mr. 
Webster  in  the  Dartmouth  College  case :  *By  the  law  of 
the  land  is  most  clearly  intended  the  general  law — a  law 
which  hears  before  it  condemns ;  which  proceeds  upon  in- 
quiry and  renders  judgment  only  after  trial.  The  mean- 
ing is  that  every  citizen  shall  hold  his  life,  liberty,  proper- 
ty, and  immunities,  under  the  protection  of  the  general 
rules  which  govern  society.'  "  ^ 

The  question,  what  constitutes  due  process  of  law  with- 
in the  meaning  of  the  Constitution,  was  much  considered 
in  the  case  of  Davidson  v.  Orleans,  96  U.  S.  97 ;  and  Mr. 
Justice  Miller,  speaking  for  the  court,  said:  "It  is  not 
possible  to  hold  that  a  party  has,  without  the  due  process 
of  law,  been  deprived  of  his  property,  when,  as  regards 
the  issue  affecting  it,  he  has,  by  the  laws  of  the  State,  a 
fair  trial  in  a  court  of  justice,  according  to  the  modes  of 
proceeding  applicable  to  such  a  case."  And,  referring  to 
Murray's  Lessee  v.  Hoboken  Land  and  Improvement  Co., 
^Ex  parte  Wall,  107  U.  S.,  265. 


196  THE  COURTS. 

18  How.  2^2,  he  said:  "An  exhaustive  judicial  inquiry 
into  the  meaning  of  the  words  'due  process  of  law,'  as 
found  in  the  Fifth  Amendment,  resulted  in  the  unani- 
mous decision  of  this  court,  that  they  do  not  necessarily 
imply  a  regular  proceeding  in  a  court  of  justice,  or  after 
the  manner  of  such  courts." 

Sec.  59.  Equal  protection  of  the  laws  under  the  Four- 
teenth Amendment  to  the  Federal  Constitution  was  made 
clear  by  Mr.  Justice  Brewer  in  Gulf,  Colorado  &  Santa 
Fe  R.  R.  Co.  V.  Ellis.*  The  question  to  be  determined 
in  this  case  was  whether  a  statute  of  Texas  authorizing 
the  recovery  of  attorney's  fees  in  addition  to  damages  in 
actions  against  railway  companies  for  the  killing  of 
stock  is  constitutional  on  the  ground  that  it  operated  to 
deprive  the  railway  companies  of  property  without  due 
process  of  law,  and  denied  to  them  the  equal  protection  of 
the  law  in  that  it  singled  them  out  of  all  citizens  and 
corporations,  and  required  them  to  pay  in  certain  cases 
attorney's  fees  to  the  parties  successfully  suing  them, 
while  it  gave  to  them  no  like  or  corresponding  benefit. 
The  distinguished  jurist  in  delivering  the  opinion  of  the 
court,  said  that  the  provision  was  not  a  legitimate  police 
regulation  for  the  purpose  of  inducing  the  railway  com- 
panies to  fence  their  tracks,  and  thus  prevent  injuries  to 
stock,  for  there  was  no  requirement  in  the  State  that 
>  165  U.  S.  150. 


THE   COURTS.  I97 

tracks  of  railways  should  be  fenced.  Continuing,  he  used 
this  language:  "But  a  mere  statute  to  compel  the  pay- 
ment of  indebtedness  does  not  come  within  the  scope 
of  police  regulations.  The  hazardous  business  of  rail- 
roading carries  with  it  no  special  necessity  for  the  prompt 
payment  of  debts.  That  is  a  duty  resting  upon  all  debt- 
ors, and  while  in  certain  cases  there  may  be  a  peculiar  obli- 
gation which  may  be  enforced  by  penalties,  yet  nothing  of 
that  kind  springs  from  the  mere  work  of  railroad  trans- 
portation. Statutes  have  been  sustained  giving  special 
protection  to  the  claims  of  laborers  and  mechanics,  but 
no  such  idea  underlies  this  legislation.  It  does  not  aim 
to  protect  the  laborer  or  the  mechanic  alone,  for  its  bene- 
fits are  conferred  upon  every  individual  in  the  State,  rich 
or  poor,  high  or  low,  who  has  a  claim  of  the  character 
described.  It  is  not  a  statute  for  the  protection  of  par- 
ticular classes  of  individuals  supposed  to  need  protection, 
but  for  the  punishment  of  certain  corporations  on  ac- 
count of  their  delinquency. 

"Neither  can  it  be  sustained  as  a  proper  means  of 
enforcing  the  payment  of  small  debts  and  preventing  any 
unnecessary  litigation  in  respect  to  them,  because  it 
does  not  impose  the  penalty  in  all  cases  where  the  amount 
in  controversy  is  within  the  limit  named  in  the  statute. 
Indeed,  the  statute  arbitrarily  singles  out  one  class  of 
debtors  and  punishes  it  for  a  failure  to  preform  certain 


198  THE   COURTS. 

duties — duties  which  are  equally  obligatory  upon  all 
debtors;  a  punishment  not  visited  by  reason  of  the  fail- 
ure" to  comply  with  any  proper  police  regulations  or 
for  the  protection  of  the  laboring  classes  or  to  prevent 
litigation  about  trifling  matters,  or  in  consequence  of 
any  special  corporate  privileges  bestowed  by  the  State. 
Unless  the  legislature  may  arbitrarily  select  one  cor- 
poration or  one  class  of  corporations,  one  individual 
or  one  class  of  individuals,  and  visit  a  penalty  upon  them 
which  is  not  imposed  upon  others  guilty  of  like  delin- 
quency, this  statute  cannot  be  sustained. 

"But  arbitrary  selection  can  never  be  justified  by  call- 
ing it  classification.  The  equal  protection  demanded 
by  the  Fourteenth  Amendment  forbids  this." 

Sec.  60.  The  question  under  consideration  in  its  appli- 
cation to  persons  other  than  citizens  was  extensively 
discussed  by  the  United  States  Supreme  Court  in  the 
Chinese  laundry  cases.  The  court  has  instructed  Mr. 
Justice  Mathews  to  say  that  the  Fourteenth  Amendment 
to  the  Constitution  is  not  confined  to  the  protection  of 
citizens.  It  says :  "Nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property  without  due  process 
of  law;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  law."  These  provisions  are 
universal  in  their  application  to  all  persons  within  the 
territorial   jurisdiction,    without   regard   to   any   differ- 


THE  COURTS.  I99 

ence  of  race,  of  color,  or  of  nationality;  and  the  equal 
protection  of  the  laws  is  a  pledge  of  the  protection  of 
equal  laws.  It  is  accordingly  enacted  by  section  1977 
of  the  Revised  Statutes  that  "all  persons  within  the 
jurisdiction  of  the  United  States  shall  have  the  same 
right  in  every  State  and  Territory  to  make  and  enforce 
contracts,  to  sue,  be  parties,  give  evidence,  and  to  the 
full  and  equal  benefit  of  all  laws  and  proceedings  for 
the  security  of  persons  and  property  as  is  enjoyed  by 
white  citizens  and  shall  be  subject  to  like  punishment, 
pains,  penalties,  taxes,  licenses,  and  exactions  of  every 
kind,  and  to  no  other."  The  questions  the  Court  had 
to  consider  and  decide  in  the  Chinese  cases,  therefore, 
are  to  be  treated  as  involving  the  rights  of  every  citizen 
of  the  United  States  with  those  of  the  strangers  and 
aliens  who  now  invoke  the  jurisdiction  of  the  court. 

It  was  contended  on  the  part  of  the  petitioners  that 
the  ordinances  for  violations  of  which  they  are  severally 
sentenced  to  imprisonment  are  void  on  their  face,  as  be- 
ing within  the  prohibitions  of  the  Fourteenth  Amend- 
ment; and  in  the  alternative,  if  not  so,  that  they 
are  void  by  reason  of  their  administration,  operating  un- 
equally, so  as  to  punish  in  the  present  petitioners  what 
is  permitted  to  others  as  lawful,  without  any  distinc- 
tion of  circumstances — an  unjust  and  illegal  discrimi- 


200  THE  COURTS. 

nation,  it  is  claimed,  which,  though  not  made  expressly 
by  the  ordinances,  is  made  possible  by  them. 

When  we  consider  the  nature  and  the  theory  of  the 
American  institutions  of  government,  the  principals  upon 
which  they  are  supposed  to  rest,  and  review  the  history 
of  their  development,  we  are  constrained  to  conclude 
that  they  do  not  mean  to  leave  room  for  the  play  and 
action  of  purely  personal  and  arbritrary  power.  Sov- 
ereignty itself  is,  of  course,  not  subject  to  law,  for  it  is 
the  author  and  source  of  law;  but  in  the  American 
system,  while  sovereign  powers  are  deligated  to  the 
agencies  of  government,  sovereignty  itself  remains  with 
the  people,  by  whom  and  for  whom  all  government  exists 
and  acts.  And  the  law  is  the  definition  and  limitation 
of  power.  It  is,  indeed,  quite  true,  that  there  must 
always  be  lodged  somewhere,  and  in  some  person  or  body, 
the  authority  of  final  decision;  and  in  many  cases  of 
mere  administration  the  responsibility  is  purely  political, 
no  appeal  lying  except  to  the  ultimate  tribunal  of  the 
public  judgment,  exercised  either  in  the  pressure  of 
opinion  or  by  means  of  the  suffrage.  But  the  funda- 
mental rights  to  life,  liberty,  and  the  pursuit  of  happiness, 
considered  as  individual  possessions,  are  secured  by  those 
maxims  of  constitutional  law  which  are  the  monuments 
showing  the  victorious  progress  of  the  race  in  securing 
to  men  the  blessings  of  civilization  under  the  reign  of 


THE  COURTS.  201 

just  and  equal  laws,  so  that,  in  the  famous  language  of 
the  Massachusetts  Bill  of  Rights,  the  government  of  the 
Commonwealth  "may  be  a  government  of  laws  and  not 
of  men."  For  the  very  idea  that  one  man  may  be 
compelled  to  hold  his  life,  or  the  means  of  living,  or  any 
material  right  essential  to  the  enjoyment  of  life,  at  the 
mere  will  of  another,  seems  to  be  intolerable  in  any 
country  where  freedom  prevails,  as  being  the  essence  of 
slavery  itself.' 

However,  let  us  understand  that  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States 
does  not  prohibit  legislation  which  is  limited  either  in 
the  objects  to  which  it  is  directed,  or  by  the  territory 
within  which  it  is  to  operate.  It  merely  requires  that  all 
persons  subjected  to  such  legislation  shall  be  treated 
alike,  under  like  circumstances  and  conditions,  both  in 
privileges  conferred  and  in  the  liabilities  imposed.'' 

The  inhibition  of  the  Fourteenth  Amendment  that 
no  State  shall  deprive  any  person  within  its  jurisdiction 
of  the  equal  protection  of  the  laws  was  designed  to  pre- 
vent any  person  or  class  of  persons  from  being  singled 
out  as  a  special  subject  for  discriminating  and  hostile 
legislation.  Under  the  designation  of  "person"  there 
is  no  doubt  that  a  private  corporation  is  included.     Such 

'  Wick  Wo.  V.  Hopkins,  ii8  U.  S.  356. 
*  Hayes  v.   Missouri,   120  U.   S.   68. 


202  THE  COURTS. 

corporations  are  merely  associations  of  individuals  united 
for  a  special  purpose,  and  permitted  to  do  business  under 
a  particular  name,  and  have  a  succession  of  members 
without  dissolution.  As  said  Chief  Justice  Marshall, 
"The  great  object  of  a  corporation  is  to  bestow  the  char- 
acter and  properties  of  individuality  on  a  collective  and 
changing  body  of  men." '  The  equal  protection  of  the 
laws  which  these  bodies  may  claim  is  only  such  as  is  ac- 
corded to  similar  associations  within  the  jurisdiction  of 
the  State.  Mr.  Justice  Field  had  an  occasion  to  say  that 
"the  plaintiff  in  error  is  not  a  corporation  within  the  ju- 
risdiction of  Pennsylvania.  The  office  it  hires  is  within 
such  jurisdiction,  and  on  condition  that  it  pays  the  re- 
quired license  tax,  it  can  claim  the  same  protection  in  the 
use  of  the  office  that  any  other  corporation  having  a  simi- 
lar office  may  claim.  It  would  then  have  the  equal  protec- 
tion of  the  law  so  far  as  it  had  anything  within  the  juris- 
diction of  the  State,  and  the  constitutional  amendment  re- 
quires nothing  more.  The  State  is  not  prohibited  from 
discriminating  in  the  privilege  it  may  grant  to  foreign 
corporations  as  a  condition  of  their  doing  business  or  hir- 
ing offices  within  its  limits,  provided  always  such  dis- 
crimination does  not  interfere  with  any  transaction  by 
such  corporations  of  interstate  or  foreign  commerce.  It 
is  not  every  corporation,  lawful  in  the  state  of  its  creation, 

'  Providence  Bank  v.  Billings,  4  Pet.  514,  562. 


THE  COURTS.  2O3 

that  other  States  may  be  willing  to  admit  within  their  ju- 
risdiction or  consent  that  it  have  offices  in  them ;  such,  for 
example,  as  a  corporation  for  lotteries.  And  even  where 
the  business  of  a  foreign  corporation  is  not  unlawful  in 
other  States  the  latter  may  wish  to  limit  the  number  of 
such  corporations,  or  to  subject  their  business  to  such 
control  as  would  be  in  accordance  with  the  policy  govern- 
ing domestic  corporations  of  a  similar  character.  The 
States  may,  therefore,  require  for  the  admission  within 
their  limits  of  the  corporations  of  other  States,  or  of  any 
number  of  them,  such  conditions  as  they  may  choose, 
without  acting  in  conflict  with  the  concluding  provision 
of  the  first  section  of  the  Fourteenth  Amendment."  * 

In  this  connection,  let  us  see  whether,  since  the 
adoption  of  the  Fourteenth  Amendment,  a  woman  who  is 
a  citizen  of  the  United  States  and  of  one  of  the  States  of 
the  United  States,  is  a  voter  in  that  State,  which  con- 
fined the  right  of  suffrage  to  men  alone. 

The  Fourteenth  Amendment  did  not  add  to  the  privi- 
leges and  immunities  of  a  citizen.  It  simply  furnished  an 
additional  guaranty  for  the  protection  of  such  as  he  al- 
ready had.  No  new  voters  were  necessarily  made  by  it. 
Indirectly  it  may  have  that  effect,  because  it  may  have 
increased  the  number  of  citizens  entitled  to  suffrage  under 
the  Constitution  and  laws  of  the  State,  but  it  operates  for 
*  Pembina  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181. 


204  THE   COURTS. 

this  purpose,  if  at  all,  through  the  States  and  the  State 
laws,  and  not  directly  upon  the  citizen. 

It  is  clear,  therefore,  we  think,  that  the  Constitution 
has  not  added  the  right  of  suffrage  to  the  privileges  and 
immunities  of  citizenship  as  they  existed  at  the  time  it 
was  adopted.  This  makes  it  proper  to  inquire  whether 
suffrage  was  co-extensive  with  the  citizenship  of  the 
States  at  the  time  of  its  adoption.  If  it  was,  then  it  may 
with  force  be  argued  that  suffrage  was  one  of  the  rights 
which  belonged  to  citizenship,  and  in  the  enjoyment  of 
which  every  citizen  must  be  protected.  But  if  it  was  not, 
the  contrary  may  with  propriety  be  assumed. 

It  is  true  that  the  United  States  guarantees  to  every 
State  a  republican  form  of  government  (Constitution, 
Article  IV,  p.  4).  It  is  also  true  that  no  State  can  pass 
a  bill  of  attainder  (Article  I,  p.  10),  and  that  no  person 
can  be  deprived  of  life,  liberty,  or  property  without  due 
process  of  law  (ib.  Amendment  5).  All  these  several 
provisions  of  the  Constitution  must  be  construed  in  con- 
nection with  the  other  parts  of  the  instrument,  and  in  the 
light  of  the  surrounding  circumstances. 

The  guaranty  is  of  a  republican  form  of  government. 
No  particular  government  is  designated  as  republican, 
neither  is  the  exact  form  to  be  guaranteed  in  any  manner 
especially  designated.  Here,  as  in  other  forms  of  the  in- 


THE  COURTS.  205 

strument,  we  are  compelled  to  resort  elsewhere  to  ascer- 
tain what  was  intended. 

The  guaranty  necessarily  implies  a  duty  on  the  part  of 
the  States  themselves  to  provide  such  a  government.  All 
the  States  had  governments  when  the  Constitution  was 
adopted.  In  all  the  people  participated  to  some  extent 
through  their  representatives  elected  in  the  manner 
specially  provided.  These  governments  the  Constitution 
did  not  change.  They  were  accepted  precisely  as  they 
were,  and  it  is,  therefore,  to  be  presumed  that  they  were 
such  as  it  was  the  duty  of  the  States  to  provide.  Thus 
we  have  unmistakable  evidence  of  what  was  republican 
in  form,  within  the  meaning  of  that  term  as  employed  in 
the  Constitution. 

As  has  been  seen,  all  the  citizens  of  the  United  States 
were  not  invested  with  the  right  of  suffrage.  In  all,  save 
perhaps  New  Jersey,  this  right  was  only  bestowed  upon 
men  and  not  upon  all  of  them.  Under  these  circum- 
stances it  is  certainly  now  too  late  to  contend  that  a 
government  is  not  republican,  within  the  meaning  of  this 
guaranty  in  the  Constitution,  because  women  are  not 
made  voters. 

Besides  this,  citizenship  has  not  in  all  cases  been  made 
a  condition  precedent  to  the  enjoyment  of  the  right  of 
suffrage.  Thus,  in  Missouri,  persons  of  foreign  birth, 
who  have  declared  their  intention  to  become  citizens  of 


206  THE  COURTS. 

the  United  States,  may  under  certain  circumstances  vote. 
The  same  provision  is  to  be  found  in  the  Constitutions  of 
Alabama,  Arkansas,  Florida,  Georgia,  Indiana,  Kansas, 
Minnesota  and  Texas. 

Certainly  if  the  courts  can  consider  any  question  set- 
tled, this  is  one.  For  nearly  ninety  years  the  people  have 
acted  upon  the  idea  that  the  Constitution,  when  it  con- 
ferred citizenship,  did  not  necessarily  confer  the  right 
of  suffrage.  If  uniform  practice  long  continued  can  set- 
tle the  construction  of  so  important  an  instrument  as  the 
Constitution  of  the  United  States  confessedly  is,  most 
certainly  it  has  been  done  here.  The  province  of  the 
courts  is  to  decide  what  the  law  is,  not  to  declare  what 
it  should  be.^ 

And  at  last,  the  legislative,  executive,  and  judicial 
powers  are  co-extensive  with  each  other.  They 
are  equal  in  dignity  and  of  co-ordinate  authority.  Neith- 
er can  subject  the  other  to  its  jurisdiction,  or  strip  it  of 
any  portion  of  its  constitutional  powers.  It  is,  therefore, 
very  proper  that  the  judiciary,  in  passing  upon  questions 
of  law  which  have  been  considered  and  acted  upon  by 
the  other  departments  of  government,  should  give  great 
weight  to  their  opinions,  especially  if  they  have  passed 
unchallenged  for  considerable  period.  The  judiciary  have 
often  yielded  to  it  when  the  correctness  of  a  practical  con- 

*  Minor  v.  Happersett,  21  Wallace  162. 


THE  COURTS.  207 

struction  of  the  law  by  the  other  departments,  in  the  per- 
formance of  their  own  duties,  was  in  question.  Never- 
theless, they  can  not  do  this  when,  in  the  opinion  of  the 
court,  the  construction  is  plainly  a  violation  of  the  Con- 
stitution. 

As  President  Roosevelt  said  at  the  gathering  of  the 
members  of  the  Washington  Bar:  "It  is  sometimes  a 
good  thing  to  be  heard  first.  It  is  always  a  good  thing 
to  have  the  right  to  speak  last.  That  right  belongs  to 
the  Supreme  Court.  The  President  and  Congress  are  all 
very  well  in  their  way.  They  can  say  what  they  think, 
but  it  rests  with  the  Supreme  Court  to  decide  what  they 
have  really  thought." 

In  theory  and  practice  the  American  judiciary  is  the 
final  authority  in  the  construction  of  the  Constitution  and 
the  laws,  and  its  construction  should  be  received  and  fol- 
lowed by  the  other  departments. 


APPENDIX  I 


APPENDIX  I 


Before  the  Promulgation  of  the 
Constitution 


Among  the  most  notable  constitutions  of  the  ancients 
were  those  of  the  Grecian  Republics — one  set  framed  b^; 
the  Amphictyonic  Counsel,  the  other  by  the  Achean 
League,  The  first  provided  that  the  council  should  have 
authority  to  propose  and  to  do  whatever  was  necessary 
for  the  general  good  of  Greece;  to  declare  and  carry  on 
war,  or  to  bring  it  to  a  close;  to  decide,  as  a  court  of 
last  resort,  all  controversies  arising  between  its  members ; 
it  was  empowered  to  direct  the  whole  force  of  the  Grecian 
confederation  against  the  rebellious.  Power  besides  was 
given  them  to  admit  new  members.  It  must  be  acknowl- 
edged that  the  Greek  constitution  was  sufficient  for  gen- 
eral purposes  and  for  the  maintenance  and  enforcement 
of  the  laws,  but  the  age  in  which  it  was  framed  was  an 
idolatrous  one.  Superstition  colored  their  meaning  and 
warped  the  construction  of  the  constitution.    Its  influence 

211 


212  BEFORE  THE  PROMULGATION 

permeated  society,  jealousies  and  strife  were  fomented, 
and  hatred  and  fear  awakened  among  the  people.  These 
culminated  at  last  in  the  Peloponessian  War,  and  the  ruin 
and  enslavement  of  the  Athenians  who  had  begun  it. 
The  constitution  of  the  Achean  League  tended  to  a  closer 
union  of  the  republics  than  did  that  of  the  Amphictyonic 
Council.  Its  effects  were  more  wide  reaching.  Under 
it  the  Senate,  composed  of  the  entire  membership  of  the 
League,  had  power  to  declare  war  and  make  peace;  to 
send  out  or  to  receive  ambassadors;  to  form  alliances  or 
to  make  treaties;  and  to  appoint  the  commander  in  chief 
of  all  the  armies,  who  was  commonly  called  Praetor.  At 
one  time  all  Greece  seemed  ready  to  unite  in  one  grand 
confederation.  But  one  of  its  members,  which  had  grown 
stronger  and  richer  than  the  rest,  became  its  master. 
The  smaller  and  less  important  states  became  jealous 
and  suspicious,  and  while  Sparta  and  Athens,  the  two 
most  powerful,  were  fast  becoming  a  hindrance  to  the 
confederation,  the  lesser  states  invoked  the  aid  of  for- 
eign powers  who  were  their  powerful  neighbors.  These, 
Egypt,  Syria,  Macedonia,  and  Rome,  were  glad  to  avail 
themselves  of  the  invitation  to  aid  in  the  defence  of  the 
weak  and  the  suppression  of  the  strong  and  it  became 
their  pleasing  duty,  because  of  the  aid  lent,  to  awaken 
fresh  strifes  among  them,  which  resulted  in  further  com- 
plications,  conflicts,  and  disorders  within  and  without 


OF  THE  CONSTITUTION.  2I3 

the  confederation  and  dispelled  the  last  hope  of  Greece 
for  ancient  liberty.  Under  the  walls  of  Corinth,  the 
Achea,  the  seat  of  the  federal  government,  was  taken 
and  burned  to  the  ground  by  Mammins  the  Roman  gen- 
eral. Thus  the  political  existence  of  Greece  was  brought 
to  an  end.  Her  arts,  the  drama,  music,  poetry,  litera- 
ture, her  sciences,  her  philosophy,  her  paganism,  her 
superstitions  with  her  luxury  and  dissipation  were  all 
transferred  to  Rome,  whose  physical  power  has  subdued 
her,  but  over  whom  she  held  the  mastery  of  mind,  for 
her  great  teachers  Thales,  Pithagoras,  Socrates,  Plato, 
Demosthenes,  and  a  host  of  other  great  Greeks  taught 
their  conquerors. 

Perhaps  the  people  who  figured  most  conspicuously 
upon  the  arena  of  the  ancient  and  mediaeval  world  were 
Romans,  for  Rome  opposed  her  constraint  and  prosaic 
intelligence  to  the  freedom  and  independence  of  the 
Greeks.  Roman  character  was  expressed  in  her  religion. 
The  word  religion  means  obligation,  a  binding  power, 
and  their  worship  was  a  business-like  performance.  Duty 
was  a  Roman  watchword,  a  law  for  each,  a  copy  of  the 
will  of  heaven.  The  end  for  which  the  Roman  was 
born  seems  to  have  been  to  stamp  upon  the  mind  of  man- 
kind the  idea  of  Law,  Government,  and  Order. 

The  great  Roman  poet,  Virgil,  knew  what  the  Ro- 
mans' life  work  was  when  he  sang : 


214  BEFORE  THE  PROMULGATION 

"  Other,  belike,   with  happier  grace. 

From  bronze  or  stone  shall  call  the  face, 

Plead  doubtful  cause,  map  the  skies, 

And  tell  when  planets  set  or  rise ; 

But,   Roman,   thou — do   thou   control 

The    Nation    far    and    wide ; 

Be  this  thy  genius,  to  impose 

The  rule  of  peace  on  vanished  foes, 

Show  pity  to  the  humbled  soul, 

And  crush  the  sons  of  pride." 

Truly  the  Romans  framed  a  most  perfect  constitu- 
tion. Bryce  says  that  the  facility  with  which  the  Roman 
jurists  pass  from  the  universal  to  the  particular  and  from 
the  particular  to  the  universal  is  uncontestable  and  mas- 
terly. 

"No  matter  now  whether  Rome  perished  as  a  state  or 
not,  Roman  law  was  strong  enough  to  survive  Rome," 
says  Sohm ;  according  to  Kent,  "  the  Roman  law  is  taught 
and  obeyed  not  only  in  France,  Spain,  Germany,  Hol- 
land, and  Scotland,  but  in  the  islands  of  the  Indian  Ocean, 
anci  on  the  banks  of  the  Mississippi  and  the  St.  Law- 
rence." So  true,  it  seems,  are  the  words  of  D'Agues- 
sean  that  the  grand  destinies  of  Rome  are  not  as  yet 
accomplished ;  for  she  reigns  throughout  the  world  by 
her  reason,  after  having  ceased  to  reign  by  her  author- 
ity. To  these  the  writer  would  add  that  the  new  member 
of  the  civilized  world  of  the  nineteenth  century,  the  consti- 
tutional state,  Japan,  is  a  debtor  to  the  Roman  Law  in 
no  less  degree  than  were  the  nations  enumerated  above. 


OF  THE  CONSTITUTION.  21 5 

But,  in  reality,  what  has  become  of  the  political  existence 
of  Rome  for  which  the  venerable  constitution  was 
formed  ? 

Rome  lacked  a  middle  class,  unity  of  the  great  de- 
pendencies, lacked  the  principle  of  succession  in  the  im- 
perial office,  lacked  the  machinery  which  the  complexity 
of  situation  made  necessary,  lacked  a  favorable  site  for 
her  capital  city,  lacked  a  popular  participation  in  legis- 
lation, lacked  proper  control  of  the  judiciary,  lacked  the 
elective  in  kingship,  lacked  in  the  commutatus,  lacked  in 
incorporation  and  legislation,  and  above  all,  Rome  had 
not  a  Supreme  Court  of  the  United  States  to  construe 
the  unwritten  understanding  of  the  constitution  and 
lacked  the  ability  to  apply  the  principles  of  the  corpus 
juries  to  the  ever  expanding  nation. 

The  question  now  to  be  settled  is  this:  Who  shall  in- 
herit the  civilization  which  was  received  from  Greece, 
and  what  shall  be  the  fate  of  laws  and  institutions  which 
had  existed  and  grown  up  within  Rome.  In  the  early 
age  of  Christianity  the  civilization  of  mediaeval  Europe 
was  predestined  to  include  the  great  Teutonic  elements, 
which  has  imparted  to  it  so  much  of  its  peculiar  power 
and  grandeur.  The  Teutonic  tribes  who  appeared  upon 
the  scene  when  a  crisis  in  the  history  of  the  world  had 
come  and  when  the  race  of  Rome  was  run,  preserved 
their  ancient  remains  through  the  reign  of  Charlemagne 


2l6  BEFORE  THE  PROMULGATION 

and  the  establishment  of  feudaHsm,  all  the  way  down 
to  the  peace  of  Westphalia. 

The  Teutonic  influence  is  the  dominant  principle  in 
the  four  great  Christian  kingdoms,  Germany,  Spain, 
France  and  England.  The  smaller  states  shared  more 
or  less  in  the  same  general  characteristics.  The  great 
and  small  states  alike  seem  to  have  followed  with  few 
variations,  translating  the  Teutonic  principles  into  their 
own  language.  "If  English  history  is  not  the  perfectly 
pure  development  of  Teutonic  principles,  it  is  the  near- 
est existing  approach  to  such  a  development."  The 
elements  that  were  not  Teutonic  could  not  break  the 
tough  metal,  but  melted  like  snow  before  the  sun  in 
England.  It  is  due  to  that  burning  character  that 
King  John  was  forced  to  grant  the  Magna  Chart  a ,  A.  D. 
12 1 5,  the  most  important  provision  of  which  was,  that 
"no  freemen  shall  be  taken  or  imprisoned  or  disseized 
or  outlawed  or  banished  or  anyways  destroyed,  nor  will 
the  king  pass  upon  him  or  commit  him  to  prison,  unless 
by  the  judgment  of  his  peers  or  the  law  of  the  land." 
Founded  upon  the  charter  the  fabric  of  constitutional 
liberty  of  an  Englishman  was  slowly  but  surely  erected. 
The  King,  Henry  III,  was  soon  obliged  to  establish  Par- 
liament in  A.  D.  1264;  and  in  the  beginning  of  the  reign 
of  Charles  I  he  received  further  assurance  in  "The 
Petition  of  Right"  of  1628,  that  "no  man  be  compelled 


OF  THE  CONSTITUTION.  21/ 

to  make  or  yield  any  gift,  loan,  benevolence,  tax,  or  such 
like  charge,  without  common  consent  by  Act  of  Parlia- 
ment; that  none  be  called  upon  to  make  answer  for  re- 
fusal so  to  do;  that  a  freeman  be  imprisoned  or  dis- 
seized only  by  the  law  of  the  land,  or  by  due  process 
of  law,  and  not  by  the  king's  special  command  without 
any  charge."  An  Englishman  has  followed  up  in  the 
next  reign  and  secured  the  right  under  the  Habeas 
Corpus  Act  to  receive  "speedy  relief  from  all  unlawful 
imprisonment  and  to  enforce  upon  judicial  and  other 
officers  the  duty  of  deliverance.''  The  liberty  loving  people 
were  not  contented  with  those  that  have  been  received 
already.  In  1688,  he  insisted  and  gained  the  "enumer- 
ation and  reaffimation  of  such  right  of  the  English- 
man," through  what  is  called  the  Bill  of  Rights.  These 
charters,  he  has  made  use  of  as  the  principles  or  instru- 
mentalities in  extending  and  broadening  of  his  right  in 
the  still  greater  Charter  of  the  English  Common  law. 

The  middle  age  in  England  was  that  age  in  which 
the  Teutonic  elements  were  absorbing  the  foreign  ele- 
ments, and  the  love  of  personal  liberty  and  the  sense  of 
independence,  virtues  of  the  Teutons,  were  working  out 
in  the  crucible  of  experience  in  the  Hellenic-Roman 
civilization.  In  a  juster  view,  it  was  the  germinating 
season;  the  seeds  of  modern  England  cast  into  the  soil 
were  quickening  into  new  institutions  and  a  new  nation- 


2l8  BEFORE  THE  PROMULGATION 

ality — the  Englishman.  "Language,  law,  custom  and 
religion  preserve  their  original  conformation  and  color- 
ing. The  German  element  is  the  paternal  element  in 
.-the  English  system,  natural  and  political.  Analogy, 
however  is  not  proof,  but  illustration;  the  chain  of 
proof  is  not  to  be  found  in  the  progressive,  persistent  de- 
velopment of  English  constitutional  history  from  the  pri- 
meval polity  of  the  common  fatherland." 

When  the  curtain  goes  up  on  modern  history,  we  have 
disclosed  to  view  the  revolt  of  the  Teutonic  spirit  known 
as  the  Reformation — the  banner  of  the  free  spirit  face 
to  face  with  its  creator,  determined  to  have  truth  found, 
and  right  done,  without  regard  to  human  tradition, 
authority,  intervention  or  privilege.  The  spirit  of  in- 
quiry, set  free,  was  changing  and  blessing  the  whole 
world.  To  this  we  owe  in  modern  literature  some  of 
the  noblest  creations  of  the  human  intellect.  To  this 
are  due  the  discoveries  of  science,  which  have  made  life 
longer,  easier  and  brighter.  Hence  have  come  in  every 
land  the  triumphs  of  truth  and  genius  over  prejudice 
and  power.  This  it  is  which  has  discovered  the  Ameri- 
can continent,  has  revealed  the  secrets  of  Central  Africa, 
and  the  isles  of  the  Pacific,  has  diminished  distance  by 
steam  and  destroyed  it  by  electricity,  and  last  and  best, 
has  created  the  greatest  of  modern  republics,  and  has 
filled  the  colonial  world  with  flourishing,  self-governing 


OF  THE  CONSTITUTION.  2I9 

people,  who  have  no  crown  or  sovereign  but  the  flag, 
the  emblem  of  dignity,  power  and  authority,  which  has 
prepared  and  is  preparing  the  reign  of  universal  peace. 

Exploring  the  New  World  and  colonial  development 
therein  were  shared  by  the  large  as  well  as  the  small 
states,  Spain,  Portugal,  England,  Dutch  Republic,  Swe- 
den, France,  Poland,  and  Germany.  The  account  of 
the  failure  or  triumph  of  these  countries  in  the  explor- 
ations and  colonization  is  not  our  aim.  The  view 
should  be  narrowed  down  as  much  as  possible  into  the 
peculiar  character  of  the  Teutonic  exploration  and  colo- 
nization, which  in  the  dark  age  was  predestined  to  ripen 
and  bloom  freely  in  the  founding  of  the  greatest  of  re- 
publics, as  an  illustrative  example  to  the  student  of 
modern  history  of  an  interesting  contrast  to  the  most 
progressive  and  most  spoiled  nations  of  Greece  and 
Rome. 

In  so  far  as  the  exploration  of  the  sea  is  concerned, 
nearly  all  of  ancient  history  in  Europe  as  it  has  come 
down  to  us  deals  with  peoples  about  the  Mediterranean. 
When  hardy  sailors  crept  along  the  shore  through  the 
Strait  of  Gibraltar  and  thence  to  Britain,  it  was  deemed 
a  wonderful  achievement  and  after  this  nothing  of  im- 
portance was  discovered  by  sea  from  the  days  of  Julius 
Caesar  to  the  fifteenth  century.  It  is  difficult  to  separate 
truth  from  fiction  in  the  account  of  the  settlement  in 


220  BEFORE  THE  PROMULGATION 

New  England  before  looo  A.  D.,  of  Norsemen  coming 
from  Iceland  and  Greenland;  but  the  account  of  the 
warriors  of  Taira  Clan,  who,  after  the  decisive  battle 
of  Danno-ura,  fled  to  the  American  continent  and  settled 
there  before  1200  A.  D.,  is  more  easily  understood,  as 
it  was  natural  that  they  should  follow  the  Japanese  cur- 
rent which  flows  past  the  Pacific  coast  and  warms  the 
shore  of  California. 

However,  to  trace  the  Teutonic  achievement  in  the 
colonization  of  America — a  Genoese  sailor  and  a  Span- 
ish queen  made  the  first  discovery  and  were  followed 
by  John  Cabot  and  his  son,  Sebastian,  the  Italian  sailors 
under  English  commission.  The  former  landed  in  1492 
at  Hayti  and  from  there  went  later  to  Havana,  the  latter 
in  A.  D.  1497,  landed  on  the  North  American  coast,  but 
as  to  whether  they  had  any  idea  that  they  had  discovered 
the  new  world  is  extremely  doubtful.  Next  in  point  of 
time,  that  is  in  1498,  came  a  man  from  Florence,  Italy, 
whose  name  and  writing  sound  the  sweetest  of  all  which 
has  lasted  to  the  present  time — "Americus"  and  the 
"  New  World."  The  colonization  of  first  significance 
made  by  France  was  in  1604.  The  French  explorers 
settled  in  Port  Royal,  Nova  Scotia  and  founded  Quebec. 
They  sailed  up  the  Great  Lakes  and  down  the  Missis- 
sippi. In  a  comparatively  short  time  the  French  ex- 
plored   the    whole    of    the    immense    Mississippi    basin 


OF  THE  CONSTITUTION  221 

between  the  Rocky  Mountains  and  the  Appalachian  chain 
as  far  down  as  Lower  Canada.  The  Spanish  and  the 
Portuguese  are  the  pioneers  in  the  armed  campaigns.  The 
Spanish  claimed  Mexico  and  Peru,  invaded  Florida  and 
established  a  permanent  settlement  at  St.  Augustine  in 
1565.  It  is  to  be  noted  that  the  Spanish,  the  Portuguese 
and  the  French  did  most  of  the  work  of  discovery  and 
exploration  by  land  and  sea,  and  the  English  did  prac- 
tically no  work;  but  in  colonizing  they  outstripped  all 
competitors. 

The  English  were  as  anxious  for  gold  and  other  pre- 
cious things  of  the  earth  as  the  Spaniards,  but  as  they 
could  not  see  gold  in  sand  dunes,  they  went  at  the  sub- 
ject in  a  more  profitable  way  and  stole  negroes  from 
Africa  to  sell  to  the  Spanish  in  America  for  gold.  When 
war  broke  out  between  Spain  and  England,  Phillip  II 
sent  in  1588  his  "invincible  Armada,"  only  to  have  it 
scattered  to  the  winds  or  sent  to  the  bottom  of  the  sea 
by  Drake  and  Howard,  so  that  the  English,  capturing 
Spanish  galleons  got  their  share  of  gold  with  very  little 
work,  besides  adding  new  laurels  to  the  crown  of  the 
Virgin  Queen,  who  now  set  up  a  claim  to  most  of  North 
America.  Permanent  English  settlement  was  effected 
by  corporations  known  as  the  London  and  Plymouth 
Companies.  The  charter  of  these  companies  gave  to 
the  colonists  all  the  political  and  civil  rights  and  privi- 


222  BEFORE  THE  PROMULGATION 

leges  of  Englishmen.  The  London  Company  was  to 
have  the  southern  part  of  the  country,  the  Plymouth 
Company  the  northern  part,  while  the  middle  ground, 
from  the  present  city  of  New  York  to  the  mouth  of 
the  Potomac  was  to  be  open  to  both.  The  London  Com- 
pany's first  expedition  was  composed  of  about  one  hun- 
dred persons,  who  laid  out  a  village  in  1607  and  called 
it  Jamestown.  Two  years  later,  five  hundred  more  colo- 
nists came  out,  and  twelve  years  after  the  first  settle- 
ment there  were  found  four  thousand  white  persons  in 
Virginia,  besides  a  considerable  number  of  negro  slaves. 
In  1 6 19,  the  colonists  were  divided  into  eleven  settle- 
ments, which  were  known  as  boroughs  and  it  was  neces- 
sary that  some  form  of  government  be  devised  for  the 
colonies  as  a  whole  and  for  defining  the  relations  of  the 
boroughs  to  each  other.  If  the  settlers  had  been  Span- 
iards or  Frenchmen  or  Italians,  no  initiative  would  have 
been  taken.  In  the  dividing,  the  settlements  began  an 
instinctive  movement  toward  regulation  of  public  af- 
fairs of  the  American  colonists,  which  peculiarity  the 
Teutonic  family  had  back  in  the  barbaric  days  in  the 
European  forests.  "  It  is  the  characteristic  of  the  Teu- 
tonic race  and  those  who  have  assimilated  with  it,  to 
take  strong  ground  on  private  rights,  but  acknowledge 
duty  to  others."  In  dividing  the  settlements  the  first 
American   government   was   brought   into   being.      The 


OF  THE  CONSTITUTION.  223 

enterprise  of  the  London  Company  was  so  successful 
in  the  colonizing  effort  that  for  sixty-five  years  there 
were  upward  of  40,000  self-supporting  white  people  in 
Virginia. 

In  those  days,  the  frequent  changes  in  the  throne  of 
England  led  to  religious  difficulties.  Henry  VIII  modi- 
fied Romanism  and  set  up  the  Established  Church,  but 
when  Mary  succeeded  the  youthful  Edward  VI,  Cathol- 
icism was  restored  and  later  Elizabeth  restored  the 
Church  of  Henry  VIII.  All  these  changes  became  the 
cause  of  the  great  movement  known  as  Puritanism. 
This  movement,  as  did  Methodism  at  a  later  date,  began 
within  the  church.  James  was  a  Presbyterian,  but  he 
was  not  true  to  the  church  in  practice,  and  Charles  be- 
lieved in  the  ritualism  of  the  Established  Church  but 
his  belief  was  changeable  and  was  always  dependent 
upon  his  perogatives.  In  consequence,  the  independent 
movement  started,  and  ended  in  the  separation  of  it 
from  the  Established  Church,  much  as  Luther  and  his 
followers  had  left  the  Roman  Catholic  Church.  The 
Pilgrims  fled  to  Holland,  thence  to  America  on  board 
the  ship  Mayflower  of  the  Plymouth  Company.  They 
sailed  from  the  Dutch  town  of  Leydon  on  the  i6th 
of  September  and  reached  America  on  the  21st  of 
November.  The  landing  on  the  "  rock  "  was  made  De- 
cember 21,   1620;  the  place  was  named  Plymouth.     It 


224  BEFORE  THE  PROMULGATION 

was  a  bitter  cold  winter,  and  more  than  half  of  the  Pil- 
grims died  before  spring.  Here  again  the  Pilgrim 
fathers  revealed  the  characteristic  earnestness,  thrift  and 
consciousness  that  changed  the  appearance  of  things 
as  unpromising  as  one  could  imagine.  The  good  harvest 
of  the  first  year  was  celebrated  by  the  institution  of  the 
now  National  festival  of  Thanksgiving.  The  Pilgrims 
struggled  long  and  hard  for  a  bare  existence,  while  the 
Virginians  soon  grew  rich;  the  Virginians  raised  to- 
bacco and  the  Pilgrims  raised  men,  which  was  about  all 
the  soil  could  support.  Next  came  to  America  the 
Puritans,  who  believed  in  the  infallibility  of  their  re- 
ligion as  sincerely  as  the  Catholics  did  in  theirs.  They 
came  from  their  home  to  exploit  their  own  religious 
idea.  Charles  I  gave  them  a  charter,  and  first  colonists 
were  sent  over  in  1628,  and  founded  the  settlement  of 
Massachusetts  Bay;  two  years  later  John  Winthrop 
came  over  with  about  one  thousand  persons  and  settled 
in  the  neighborhood  of  the  present  city  of  Boston.  In 
the  next  ten  years  some  20,000  more  came.  Here  the 
first  voice  was  raised  for  the  separation  of  the  church 
and  state,  whereupon  the  clergyman,  Roger  Williams, 
was  met  by  the  King's  wrath  and  ordered  home  for 
punishment;  but  he  and  his  followers  instead  of  obeying 
the  order,  set  off  through  the  woods  and  established  a 
town  which  was  called  Providence,  in  the  present  State 


OF  THE  CONSTITUTION.  225 

of  Rhode  Island.  A  new  colony  was  founded  near 
Portsmouth,  New  Hampshire,  by  John  Mason  and  on 
the  Maine  coast  by  Sir  Ferdinando  Gorges,  both  of 
whom  were  the  King's  friends;  and  in  1679  Charles  II 
made  of  these  a  new  royal  colony  called  New  Hamp- 
shire. In  1638,  a  new  colony  under  the  leadership  of 
the  Reverend  John  Davenport  came  from  England  and 
formed  the  New  Haven  colony.  The  latest  sect  that 
came  to  Massachusetts  was  that  of  Quakers  or  Friends, 
the  mildest  people  in  Christendom,  only  to  conflict  with 
the  Masaschusetts  religious  views;  but  this  they  avoided 
by  removing  into  Rhode  Island  in  1659.  Carolina, 
named  in  honor  of  Charles  II,  had  first  been  settled  by 
the  Huguenots,  whom  the  Spanish  massacred,  and  in 
1663,  Charles  granted  a  charter  whereby  a  settlement 
was  made,  the  leading  one  being  Charleston. 

It  is  worth  noting  that  we  owe  to  the  Dutch  some  of 
the  first  important  settlements  in  America.  Hendrick 
Hudson  was  one  of  the  most  daring  explorers  of  the 
period.  To  find  a  route  to  India,  he  started  in  1609, 
and  had  discovered  the  bay,  which  bears  his  name  to 
this  day.  The  Dutch  settled  in  the  country,  the  center 
being  Albany.  They  were  great  traders  and  soon  opened 
a  route  with  the  Indians  for  furs.  The  Swedes,  also, 
formed  a  settlement  on  the  Delaware,  where  Wilming- 
ton now  stands,  and  were  for  a  time  prosperous.     But. 


226  BEFORE  THE  PROMULGATION 

in  1655  Peter  Stuyvesant  came  from  New  Amsterdam, 
now  New  York,  and  beseiged  the  Swedes,  claiming  all 
the  land  under  Hudson's  discoveries,  and  as  a  result,  the 
empire  of  New  Sweden  fell.  The  thrifty  Dutch  soon 
g^ew  prosperous  only  to  arouse  the  jealousies  of  the 
English,  who  suddenly  remembered  that  Cabot  had  dis- 
covered the  continent  of  North  America,  and  who  soon 
sent  a  fleet  in  1664,  which  conquered  the  Dutch.  Their 
territory  was  given  to  the  King's  brother,  the  Duke  of 
York,  and  named  in  his  honor.  New  York.  James 
gave  what  is  now  New  Jersey  to  a  couple  of  his  friends, 
Lord  Berkeley  and  Sir  George  Carteret.  With  regard 
to  the  colony  of  Maryland:  it  was  first  founded  by 
the  refugees  of  the  Catholics  in  England,  who  were  de- 
nied civil  rights  and  persecuted  for  their  religion  and 
who  founded  this  prosperous  State  in  1636,  with  the  re- 
ligion tolerated  under  Lord  Baltimore.  William  Penn, 
the  son  of  an  English  admiral,  to  whom  the  crown  owed 
money,  concluded  to  make  a  settlement  in  America,  and 
proposed  to  settle  the  bill  for  a  grant  of  land  in  America. 
The  result  was  the  grant  of  all  the  country  north  of 
Maryland,  west  of  the  Jerseys,  and  south  of  New  York, 
as  the  State  of  Pennsylvania  stands  today.  The  last  set- 
tlement was  made  in  1732  when  George  II  granted  a 
charter  to  James  Oglethorpe,  for  which  the  colony  was 
named  in  the  King's  honor.  Briefly  this  is  the  founda- 


OF  THE  CONSTITUTION.  22/ 

tion  of  the  English  colonies  in  America.     From  the  ac- 
cession of  William  and  Mary  to  that  of  George  III  the 
American    colonies    throve   and    emigration    poured    in 
from  many  parts  of  Europe.     The  Germans  swarmed 
into   Pennsylvania.      There   were   Scotch   and   Irish   in 
southern  Pennsylvania  and  Virg^inia,  who  were  pushed 
back   into   the   mountains,   where   their   descendents   in 
West  Virginia  and  Kentucky  today  keep  up  family  feuds 
made  memorable  in  song  and  story.     The  Huguenots 
went  to  the  Carolinas.     The  wave  of  immigration  has 
crossed  the  Appalachian  Chain,   the  Rocky  Mountains 
and  the  Sierra  Nevada.     Meantime,  the  colonies  were 
gaining  a  good  deal  of  their  population  by  the  redemp- 
tion   system;    the    redemptioners,    who    were    largely 
Germans,  soon  became  not  only  valued  citizens,  but  were 
also  found  useful  as  artillerymen  when  General  Washing- 
ton needed  them.     Thirteen  American  colonies  of  Great 
Britain  occupied  all  the  country  from  St.  Croix  River  to 
the  Florida  line,  and  from  the  Atlantic  to  the  Mississippi 
south  of  the  St.  Lawrence  and  the  Great  Lakes.    There 
were  in  1760  some  1,600,000  persons,  including  about 
400,000  slaves,  and  in  1770  the  population  had  increased 
to  double  this  figure  in  round  numbers. 

Thus  stood  the  colonists  in  1770,  prosperous,  vir- 
tuous, industrious  and  loyal  to  the  crown.  We  shall  get 
an  entirely  erroneous  idea  of  the  fathers  of  the  revolu- 


228  BEFORE  THE  PROMULGATION 

tionary  movement  now  approaching  in  the  colonies,  if 
we  do  not  look  at  the  condition  of  poHtics  in  England; 
for  the  love  of  country  is  inherent  in  Englishmen.  After 
the  expulsion  of  the  Stuarts,  England  was  ruled  mostly 
by  foreigners  for  seventy  odd  years.  William  III  was 
a  Dutchman.  Mary  was  an  Englishwoman,  but  wife  of 
William.  Anne  was  an  Englishwoman,  but  she  was 
ruled  by  her  ministers.  George  I  and  George  II  were 
foreigners  who  could  scarcely  speak  English.  Parlia- 
ment had  then  reached  a  commanding  position  in 
England.  In  1760,  only  about  one-tenth  of  the  adult 
males  voted  for  the  members  of  the  lower  House  of 
Parliament,  and  seats  were  distributed  as  they  had  been 
two  centuries  before.  The  members  were  largely  friends 
and  henchmen  of  the  nobility,  and  great  county  families 
who  owned  seats  and  distributed  them  as  they  chose. 
Under  such  circumstances  it  can  be  seen  that  it  was 
easy  to  use  corrupt  methods  and  influence  to  control 
elections.  In  Great  Britain  for  many  years  there  was 
constant  trouble  between  a  bigoted  minister  and  a  dog- 
ged and  occasionally  half  insane  King.  The  revolution 
that  came  with  the  colonies  benefitted  England,  as  one 
result  was  the  gradual  growth  of  reform. 

Parliament  was  now  in  control  of  colonial  legislation, 
and  enacted  laws  regulating  trade,  which  were  designed 
to  make  the  colonies  do  all  their  buying  and  selling  in 


OF  THE  CONSTITUTION.  229 

England.  But  the  colonies  ignored  all  the  regulations. 
Parliament  was  busy  with  other  matters,  so  that  the 
colonies  were  let  alone  for  a  time.  In  1760  George  III 
came  to  the  throne,  and  George  Granville  into  office  in 
1763,  when  the  situation  of  the  colonies  became  very 
different.  Granville  was  an  industrious  man,  who  was 
by  no  means  pleased  to  learn  that  many  of  the  laws 
concerning  trade  were  ignored  and  evaded.  He  had  no 
malice  toward  the  colonists,  but  he  erred  in  the  remedy 
he  proposed.  The  Stamp  Act  was  passed  in  1765,  mak- 
ing it  necessary  to  use  stamped  paper  for  many  purposes. 
The  Englishman  has  hated  nothing  so  much  as  taxation. 
This  should  be  remembered  in  all  his  history.  The  colo- 
nists were  Englishmen,  and  reasonably  claimed  all  the 
rights,  privileges  and  immunities  of  Englishmen,  and 
objected  vigorously  to  the  exercise  of  the  taxing  power 
in  a  body  which  in  no  sense  represented  them.  On  No- 
vember 7,  1765,  the  Stamp  Act  Congress,  composed  of 
the  delegates  from  the  colonies,  met  in  New  York.  A 
protest  against  the  Act  was  passed,  with  petitions  to  the 
King  and  Parliament.  The  victory  of  Pitt  in  securing 
a  repeal  of  the  Stamp  Act  soon  followed,  but  that  vic- 
tory was  a  barren  one,  for  Parliament  passed  three  acts 
in  1767,  one  of  which  laid  direct  taxes  on  all  tea,  glass, 
paper,  paints  and  some  other  articles  imported  to  the 
colonies,  and  which  were,  therefore,  more  objectionable 


230  BEFORE  THE  PROMULGATION 

than  the  Stamp  Act.  One  can  hardly  understand  the 
stupidity  of  the  men  who  concocted  this  act.  It  was 
simply  another  method  of  asserting  the  right  to  tax 
the  colonists  by  ostensibly  giving  them  a  bribe  to  accept 
this  principle.  Such  a  plan  in  another  part  of  the  world 
might  not  have  met  with  so  much  disfavor,  but  in  the 
New  World,  where  the  Teutonic  family  of  nations 
formed  the  government,  it  was  a  "  pin  prick  "  policy. 

Not  stopping  to  glance  over  the  scientific  system  of 
the  colonists  in  smuggling  tea,  not  arguing  against  the 
crown  officers  searching  anywhere  they  pleased  for  the 
alleged  smuggled  goods  and  invading  the  cherished  be- 
lief of  the  Englishman  that  his  house  is  his  castle,  and 
also  not  attracting  our  attention  to  the  Quebec  Act  in 
its  relation  to  Canadians,  let  us  pass  over  to  the  more 
important  event  which  took  place  in  Philadelphia  Sep- 
tember 5,  1774,  where  the  First  Continental  Congress 
met  to  consider  how  to  assist  the  Englishman  in  the 
exercise  of  his  legal  rights.  A  petition  was  drawn  up 
to  the  King,  in  which  loyalty  was  professed  and  in 
which  the  repeal  of  the  obnoxious  acts  were  requested. 
The  complaints  were  principally  directed  to  four  points: 
(i)  imposing  taxes  without  the  consent  of  the 
people's  representative,  (2)  keeping  up  standing  armies 
in  time  of  peace  to  overawe  the  people,  (3)  denying  the 
right  to  trial  by  jury  of  the  vicinage  in  some  cases,  and 


OF  THE  CONSTITUTION.  23 1 

providing  for  a  transportation  of  persons  accused  of 
crimes  in  America  for  trial  in  Great  Britain,  (4)  expos- 
ing the  premises  of  the  people  to  searches,  and  their 
persons,  papers,  and  property  to  seizures  on  general 
warrants.  If  this  had  been  all,  American  history  might 
have  been  different,  but  the  Congress  resolved  that  in 
case  the  repressive  legislation  was  enforced,  all  America 
should  resist  it  by  force.  It  was  this  that  hardened  the 
heart  of  George  III  and  his  ministers,  who  subsequently 
ordered  the  British  army  and  officers  to  keep  the  colo- 
nists from  preparing  for  a  conflict. 

Learning  that  the  colonists  had  established  a  depot 
of  supplies  at  Concord,  some  twenty  miles  from  Boston, 
on  April  18,  1775,  General  Gage  sent  about  eight  hun- 
dred men  under  Major  Pitcairn  to  destroy  the  stores 
and  incidentally  picked  up  John  Hancock  and  Samuel 
Adams  at  Lexington  on  the  way  home.  The  two  latter 
were  to  be  sent  to  England  for  trial  on  a  charge  of 
treason,  but  long  before  the  troops  were  under  way  the 
colonists  were  preparing  to  receive  them.  The  first  en- 
counter was  on  Lexington  Green,  where  a  few  Minute 
men  had  hastily  gathered.  Seven  colonists  fell  dead.  It 
is  not  known  by  whom  the  order  to  fire  was  given,  but 
this  was  the  "  shot  heard  round  the  world."  The  news 
spread  like  wildfire.  Though  there  had  been  no  dec- 
laration of  war,  yet  everyone  saw  the  struggle  was  on. 


232  BEFORE   THE    PROMULGATION 

Without  discussing  independence  or  any  other  issue, 
Congress  elected  George  Washington,  of  Virginia,  Com- 
mander-in-chief;  while  the  King's  answer  to  the  petition 
of  the  colonists  was  war. 

The  war  actually  began  on  April  18,  1775.  It  was 
intensified  by  American  fire  that  drove  the  English  as- 
saulting column  down  the  Bunker  Hill  on  July  T6th. 
When  Howe  evacuated  Boston,  March  17,  1776,  and 
when  Washington  marched  his  army  to  Brooklyn,  Long 
Island,  the  question  of  Independence  had  come  to  agitate 
Congress.  And  finally  the  declaration,  which  was  drawn 
up  by  Thomas  Jefferson,  of  Virginia,  and  revised  by 
Benjamin  Franklin,  John  Adams,  Roger  Sherman  and 
Robert  R.  Livingston  was  adopted  July  4,  1776,  in  the 
State  House. 

In  the  declaration,  as  had  been  actuated  by  "  a  decent 
respect  for  the  opinion  of  mankind,"  alleged  against 
the  King  and  Parliament  the  famous  eighteen  accusa- 
tions. The  colonies  gave  prominence  to  the  declaration 
in  the  following  solemn  and  impressive  decree: 

"  We,  therefore,  the  Representatives  of  the  United 
States  of  America,  in  General  Congress  assembled,  ap- 
pealing to  the  Supreme  Judge  of  the  World  for  the 
rectitude  of  our  intentions,  do,  in  the  name  and  by  the 
authority  of  the  good  people  of  these  Colonies,  solemnly 
publish  and  declare  that  these  United  Colonies  are,  and 


OF  THE  CONSTITUTION.  233 

of  right  ought  to  be,  free  and  independent  States;  that 
they  are  absolved  from  all  allegiance  to  the  British 
crown,  and  that  all  political  connection  between  them 
and  the  State  of  Great  Britain  is,  and  ought  to  be,  totally 
dissolved;  and  that  as  free  and  independent  States,  they 
have  full  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  do  all  other  acts  and 
things  which  independent  States  may  of  right  do.  And 
for  the  support  of  this  Declaration,  with  a  firm  reliance 
on  the  protection  of  Divine  Providence,  we  mutually 
pledge  to  each  other  our  lives,  our  fortunes,  and  our 
secret  honor." 

Meantime  the  war  was  brough  to  a  decisive  campaign 
when  Washington  besieged  Cornwallis,  and  by  the  sur- 
render of  the  latter  on  October  19,  1781,  the  war  was 
practically  over;  yes,  actually,  it  was  ended  by  Wash- 
ington's disbandment  of  the  army  on  April  19,  1783, 
eight  years  from  the  day  the  Minute  men  gathered  on 
Lexington  Green.  The  treaty  of  peace  was  agreed  to 
by  the  American  peace  commissioners,  Benjamin  Frank- 
lin, John  Jay  and  John  Adams  on  November  30,  1782, 
and  was  finally  concluded  September  3,  1783. 

Peace  hath  her  troubles  no  less  than  war.  When  the 
was  was  over  the  States  drifted  back  into  their  old  ways 
before  the  war.  Each  had  its  own  laws.  Strong 
jealousies  and  rivalries  existed,  which  manifested  them- 


234  BEFORE  THE  PROMULGATION 

selves  in  legislation.  Each  State  had  its  own  tariff  law, 
and  discriminated  against  its  neighbors.  Each  State  was 
in  debt  for  the  war.  Congress  was  in  debt  for  the  loans 
it  had  made  abroad,  and  borrowed  money  to  pay  the 
interest.  The  old  self-constituted  Continental  Congress 
had  been  succeeded  by  the  Congress  formed  under  the 
Articles  of  Confederation,  It  seems  paradoxical,  but  the 
States  under  the  Articles  of  Confederation  were  in  many 
respects  less  satisfactory  than  before  the  war  began.  If 
the  Articles  of  Confederation  had  been  stronger  Ameri- 
can history  might  have  been  shorter,  but  as  they  were  so 
weak,  a  stronger  government  was  possible.  Thoughtful 
men  saw  that  something  must  be  done  speedily,  and  the 
result  was  the  Constitutional  Convention  of  1787,  which 
marks  the  turning  point  in  American  history.  The  Con- 
vention was  called  to  amend  the  Articles  of  Confedera- 
tion, but  it  adopted  a  new  constitution  entirely.  For- 
tunately for  other  races,  and  for  the  American  genera- 
tions the  states  sent  delegations  of  their  ablest  men. 
From  Massachusetts  came  Nathaniel  Gorham,  Rufus 
King,  Elbridge  Gerry  and  Caleb  Strong.  From  New 
York  came  Alexander  Hamilton,  John  Lansing,  and 
Robert  Yates;  from  Delaware,  Gunning  Bedford,  Jr., 
George  Read,  and  John  Dickinson;  from  Pennsylvania, 
Jard  Ingersoll,  Robert  Morris,  Thomas  Miffin,  James 
Wilson,  and  Benjamin  Franklin;  from  Virginia,  James 


OF  THE  CONSTITUTION.  235 

Madison,  Edmond  Randolph,  George  Mason  and  George 
Washington;  from  New  Jersey,  William  Paterson  and 
Jonathan  Jayton;  from  North  Carolina,  William  Blount 
and  Alexander  Martin;  from  South  Carolina,  Pierce 
Butler,  John  Rutledge,  Charles  Pickney  and  Charles  C. 
Pinckney;  from  Georgia,  William  Houston  and  Abra- 
ham Baldwin;  from  Connecticut,  Roger  Sherman  and 
Oliver  Ellsworth;  from  Maryland,  Daniel  Carroll  and 
James  McHenry;  from  New  Hampshire,  John  Langdon 
and  Nicholas  Gilman.  Rhode  Island  was  not  represented. 
Not  all  the  delegates  are  here  enumerated,  but  the  names 
given  indicate  the  high  quality  of  the  Convention,  which 
met  in  Philadelphia,  May  25,  1787.  It  did  not  complete 
its  work  until  September  17th,  all  of  its  sessions  being 
held  in  secret. 

George  Washington  was  elected  President,  and  it 
was  in  great  measure  due  to  the  certainty  that  he  would 
be  the  first  executive  of  the  United  States  that  the  Con- 
stitution was  finally  adopted. 

The  strong  government  party,  or  the  Whigs,  later 
called  the  Federal  party,  headed  by  Alexander  Hamilton, 
James  Madison  and  John  Jay,  advocated  the  adoption 
of  the  Constitution,  and  their  pens  supplied  much  of  the 
current  political  literature  of  that  day.  Against  the 
Federal  party,  the  Particularist  Whigs,  later  called  the 
Anti-Federal  party,  opposed  every  preliminary  step  look- 


236  BEFORE  THE  CONSTITUTION. 

ing  to  the  adoption  of  the  federal  constitution  and  ad- 
hered to  the  rights  of  the  States  and  those  of  local 
self-government.  The  Anti-Federalists  party  was  not 
without  popular  orators  and  leaders.  Patrick  Henry  and 
Samuel  Adams  took  special  pride  in  espousing  the  cause 
of  the  Anti-Federals.  The  war  question  between  the 
Whigs  and  the  Tories,  or  Colonial  parties, — the  former 
composed  of  patriots,  the  latter  supporting  the  Crown — 
must  have  passed  quickly  away  as  living  issues  came  up, 
though  the  newspapers  and  contemporaneous  history 
show  that  the  old  taunts  and  battle  cries  were  applied 
to  the  new  situation  with  a  plainness  and  virulence  that 
must  still  be  envied  by  the  sensational  and  more  bitterly 
partisan  journals  of  our  own  day.  To  read  these  now, 
and  some  of  our  facts  are  gathered  from  such  sources, 
is  to  account  for  the  frequent  use  of  the  saying  "  the 
ingratitude  of  republics,"  for  when  partisan  hatred  could 
deride  the  still  recent  utterances  of  Henry  before  the 
startled  assembly  of  Virginians,  and  of  Adams  in  advo- 
cating the  adoption  of  declaration,  there  must,  at  least 
to  every  surface  view,  have  been  rank  ingratitude.  Their 
good  names,  however,  survived  the  struggle,  as  good 
names  in  American  republics  have  ever  survived.  In 
politics  the  Teutonic  and  related  races  then  as  now,  cha- 
racteristically hated  with  promptness  and  forgave  with 
generosity. 


APPENDIX  II 


APPENDIX  II 


Constitution  of  the  United  States 


WE,  THE  PEOPLE  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quility, provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ouselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for 
the  United   States  of  America. 

ARTICLE   L 

Section  i.  All  legislative  powers  herein  granted,  shall  be 
vested  in  a  congress  of  the  United  States,  which  shall  consist  of 
a  senate  and  house  of  representatives. 

Sec.  2.  The  house  of  representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the  several 
states;  and  the  electors  in  each  state  have  the  qualifications  re- 
quisite for  electors  of  the  most  numerous  branch  of  the  state 
legislature. 

No  person  shall  be  a  representative  who  shall  not  have  at- 
tained to  the  age  of  twenty-five  years,  and  been  seven  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  inhabitant  of  that  state  in  which  he  shall  be  chosen. 

(Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined  by 
adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  clause  included  in 
brackets  is  amended  by  the  fourteenth  amendment,  second  sec- 
tion).    The  actual  enumeration  shall  be  made  within  three  years 

239 


240  CONSTITUTION  OF  THE  UNITED  STATES. 

after  the  first  meeting  of  the  congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  representatives  shall  not  ex- 
ceed one  for  every  thirty  thousand,  but  each  state  shall  have  at 
least  one  representative,  and  until  such  enumeration  shall  be 
made,  the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence  Plan- 
tations one,  Connecticut  five.  New  York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five,  South  Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from  any  state, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such   vacancies. 

The  house  of  representatives  shall  choose  their  speaker  and 
other  officers ;  and  shall  have  the  sole  power  of  impeachment. 

Sec.  3.  The  senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  state,  chosen  by  'the  legislature  thereof, 
for  six  years ;  and  each  senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided  as  equally  as  may  be  into 
three  classes.  The  seats  of  the  senators  of  the  first  class  shall 
be  vacated  at  the  expiration  of  the  second  year,  of  the  second 
class  at  the  expiration  of  the  fourth  year,  and  of  the  third 
class  at  the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year;  and  if  vacancies  happen,  by  resig- 
nation or  otherwise,  during  the  recess  of  the  legislature  of  any 
state,  the  executive  thereof  may  make  temporary  appointments 
until  the  next  meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies. 

No  person  shall  be  a  senator  who  shall  not  have  attained  to 
the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of  that 
state  for  which  he  shall  be  chosen. 

The  vice-president  of  the  United  States  shall  be  president  of 
the  senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 

The  senate  shall  choose  their  other  officers,  and  also  a  presi- 
dent pro  tempore,  in  the  absence  of  the  vice-president,  or  when  he 
shall  exercise  the  office  of  president  of  the  United  States. 

The  senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose  they  shall  be  on  oath  or  affirmation. 
When  the  president  of  the  United  States  is  tried,  the  chief  justice 
shall  preside;  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present. 


CONSTITUTION  OF  THE  UNITED  STATES.  24I 

Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disquaification  to  hold  and  enjoy- 
any  office  of  honor,  trust,  or  profit,  under  the  United  States ;  but 
the  party  convicted  shall  nevertheless  be  liable  and  subject  to  in- 
dictment, trial,  judgment  and  punishment,  according  to  law. 

Sec.  4.  The  times,  places  and  manner  of  holding  elections 
for  senators  and  representatives,  shall  be  prescribed  in  each  state 
by  the  legislature  thereof,  but  the  congress  may  at  any  time  by 
law  make  or  alter  such  regulations  except  as  to  the  places  of 
choosing   senators. 

The  congress  shall  assemble  at  least  once  in  every  year,  and 
such  meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day. 

Sec.  5.  Each  house  shall  be  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members,  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller  num- 
ber may  adjourn  from  day  to  day,  and  may  be  authorized  to  com- 
pel the  attendance  of  absent  members,  in  such  manner,  and  under 
such  penalties  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceedings,  pun- 
ish its  members  for  disorderly  behavior,  and,  with  the  concurrence 
of  two-thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in 
their  judgment  require  secrecy;  and  the  yeas  and  nays  of  the 
members  of  either  house  on  any  question,  shall,  at  the  desire  of 
one-fifth  of  those  present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting. 

Sec.  6.  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and  paid  out 
of  the  treasury  of  the  United  States.  They  shall,  in  all  cases,  ex- 
cept treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same,  and  for  any 
speech  or  debate  in  either  house,  they  shall  not  be  questioned  in 
any  other  place. 

No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States,  which  shall  have  been  created,  or  the  emolu- 
ment whereof  shall  have  been  increased  during  such  time;  and  no.> 


242  CONSTITUTION  OF  THE  UNvTED  STATES. 

person    holding   any    office    under    the    United    States,    shall   be    a 
member  of  either  house  during  his  continuance  in  office. 

Sec.  7.  All  bills  for  raising  revenue  shall  originate  in  the 
house  of  representatives;  but  the  senate  may  propose  or  concur 
with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  house  of  representatives 
and  the  senate,  shall,  before  it  become  a  law,  be  presented  to  the 
president  of  the  United  States;  if  he  approve  he  shall  sign  it,  but 
if  not,  he  shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and,  if  approved 
by  two-thirds  of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases,  the  votes  of  both  houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against  the  bill, 
shall  be  entered  on  the  journal  of  each  house  respectively.  If  any 
bill  shall  not  be  returned  by  the  president  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him,  the  same 
shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the 
congress  by  their  adjournment  prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  senate  and  house  of  representatives  may  be  necessary  (except 
on  a  question  of  adjournment)  shall  be  presented  to  the  president 
of  the  United  States;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him,  or  being  disapproved  by  him,  shall  be  repassed 
by  two-thirds  of  the  senate  and  house  of  representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

Sec.   8.    The   congress   shall   have  power : — 

To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defence  and  general  welfare 
of  the  United  States ;  but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  regulate  commerce  with  foreign  nations,  and  among  the 
several  states,  and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  fix  the  standard  of  weights  and  measures; 

To  provide  for  the  punishment  of  counterfeiting  the  securities, 
ajid  current  coin  of  the  United  States ; 


CONSTITUTION  OF  THE  UNITED  STATES.  243 

To  establish  post-offices  and  post-roads ; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times  to  authors  and  inventors  the  exclusive  right  to 
their  respective  writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  supreme  court; 

To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offences  against  the  law  of  nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

To  raise  and  support  armies ;  but  no  appropriation  of  money,  to 
that  use,  shall  be  for  a  longer  term  than  two  years ; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  union,  suppress  insurrections  and  repel  invasions ; 

To  provide  for  organizing,  arming  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  states  respectively, 
the  appointment  of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  congress ; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession 
of  particular  states,  and  the  acceptance  of  congress,  become  the 
seat  of  the  government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of  the  legislature 
of  the  state  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dock  yards,  and  other  needful  building: — And 

To  make  all  laws  which  shall  be  necessary  and  proper  for  car- 
rying into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof. 

Sec.  9.  The  migration  or  importation  of  such  persons  as  any 
of  the  states  now  existing  shall  think  proper  to  admit,  shall  not  be 
prohibited  by  the  congress  prior  to  the  year  one  thousand  eight 
hundred  and  eight;  but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law,  shall  be  passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken. 


244  CONSTITUTION  OF  THE  UNITED  STATES. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state. 

No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another;  nor 
shall  vessels  bound  to  or  from  one  state  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law;  and  a  regular  statement 
and  account  of  the  receipts  and  expenditures  of  all  public  money 
shall  be  published  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States;  and 
no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  the  congress,  accept  of  any  present,  emolu- 
ment, office  or  title,  of  any  kind  whatever,  from  any  kingj  prince, 
or   foreign  state. 

Sec.  10.  No  state  shall  enter  into  any  treaty,  alliance,  or  con- 
federation; grant  letters  of  marque  and  reprisal;  coin  money; 
emit  bills  of  credit;  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts;  pass  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts,  or  grant 
any    title    of    nobility. 

No  state  shall,  without  the  consent  of  the  congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws ;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any  state  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the  United  States ; 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of  the 
congress.  No  state  shall,  without  the  consent  of  congress,  lay  any 
duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter 
into  any  agreement  or  compact  with  another  state  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

Section  i.  The  executive  power  shall  be  vested  in  a  president 
of  the  United  States  of  America.  He  shall  hold  his  office  during 
the  term  of  four  years,  and,  together  with  the  vice-president,  chosen 
for  the  same  term,  be  elected  as  follows : 

Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors,  equal  to  the  whole  num- 
ber of  senators  and  representatives  to  which  the  state  may  be  en- 
titled in  the  congress;  but  no  senator  or  representative  or  person 


CONSTITUTION  OF  THE  UNITED  STATES.  245 

holding  an  office  of  trust  or  profit  under  the  United  States,  shall 
be  appointed  an  elector. 

(The  electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  state  with  themselves.  And  they  shall  make  a 
list  of  all  persons  voted  for,  and  of  the  number  of  votes  for  each; 
which  list  they  shall  sign  and  certify,  and  transmit  sealed  to  the 
seat  of  government  of  the  United  States,  directed  to  the  president 
of  the  senate.  The  president  of  the  senate  shall,  in  the  presence  of 
the  senate  and  house  of  representatives,  open  all  the  certificates  and 
the  votes  shall  then  be  counted.  The  person  having  the  greatest 
number  of  votes  shall  be  the  president,  if  such  number  be  a  ma- 
jority of  the  whole  number  of  electors  appointed;  and  if  there  be 
more  than  one  who  have  such  majority,  and  have  an  equal  number 
of  votes,  then  the  house  of  representatives  shall  immediately  choose, 
by  ballot,  one  of  them  for  president ;  and  if  no  person  has  a 
majority,  then  from  the  five  highest  on  the  list,  the  said  house 
shall,  in  like  manner,  choose  the  president.  But  in  choosing  the 
president,  the  votes  shall  be  taken  by  states,  the  representation 
from  each  state  having  one  vote;  a  quorum  for  this  purpose  shall 
consist  of  a  member  or  members  from  two-thirds  of  the  states, 
and  a  majority  of  all  the  states  shall  be  necessary  to  a  choice.  In 
every  case,  after  the  choice  of  the  president,  the  person  having 
the  greatest  number  of  votes  of  the  electors  shall  be  the  vice- 
president.  But  if  there  should  remain  two  or  more  who  have  equal 
votes,  the  senate  shall  choose  from  them,  by  ballot,  the  vice-presi- 
dent.    This  clause  has  been  superseded  by  the  twelfth  amendment) . 

The  congress  may  determine  the  time  of  choosing  the  electors, 
and  the  day  on  which  they  shall  give  their  votes ;  which  day  shall 
be  the  same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  constitution,  shall 
be  eligible  to  the  office  of  president;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of 
thirty-five  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

In  case  of  the  removal  of  the  president  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  vice-president,  and 
the  congress  may  by  law  provide  for  the  case  of  removal,  death, 
resignation,  or  inability,  both  of  the  president  and  vice-president, 
declaring  what  officer  shall  then  act  as  president,  and  such  officer 


246  CONSTITUTION  OF  THE  UNITED  STATES. 

shall  act  accordingly,  until  the  disability  be  removed,  or  a  presi- 
dent shall  be  elected. 

The  president  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he  shall 
not  receive  within  that  period  any  other  emolument  from  the 
United   States   or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation : — 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  president  of  the  United  States,  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the  constitution  of  the 
United  States." 

Sec.  2.  The  president  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  several 
states,  when  called  into  the  actual  service  of  the  United  States ;  he 
may  require  the  opinion  in  writing  of  the  principal  officer  in  each 
of  the  executive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices ;  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offences  against  the  United  States,  ex- 
cept in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  senate,  to  make  treaties,  provided  two-thirds  of  the  senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the  advice 
and  consent  of  the  senate,  shall  appoint  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  supreme  court,  and  all  other 
officers  of  the  United  States,  whose  appointments  are  not  herein 
otherwise  provided  for  and  which  shall  be  established  by  law.  But 
the  congress  may,  by  law,  vest  the  appointment  of  such  inferior 
officers  as  they  think  proper,  in  the  president  alone,  in  the  courts 
of  law,  or  in  the  heads  of  departments. 

The  president  shall  have  power  to  fill  all  vacancies  that  may 
happen  during  the  recess  of  the  senate,  by  granting  commissions, 
which  shall  expire  at  the  end  of  their  next  session. 

Sec.  3.  He  shall  from  time  to  time  give  to  the  congress  infor- 
mation of  the  state  of  the  union,  and  recommend  to  their  consider- 
ation such  measures  as  he  shall  judge  necessary  and  expedient.  He 
may,  on  extraordinary  occasions,  convene  both  houses,  or  either  of 
them ;  and  in  case  of  disagreement  between  them,  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper.  He  shall  receive  ambassadors  and  other  public 
ministers.  He  shall  take  care  that  the  laws  be  faithfully  executed ; 
and  shall  commission  all  the  officers  of  the  United  States. 


CONSTITUTION  OF  THE  UNITED  STATES.  247 

■  Sec.  4.  The  president,  vice-president,  and  all  civil  officers  of 
the  United  States,  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes  and 
misdemeanors. 

ARTICLE  III. 

Section  i.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts  as  congress 
may,  from  time  to  time,  ordain  and  establish.  The  judges,  both  of 
the  supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behavior ;  and  shall,  at  stated  times,  receive  for  their  services 
a  compensation  which  shall  not  be  diminished  during  their  con- 
tinuance in  office. 

Sec.  2.  The  judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority; to  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdiction;  to 
controversies  to  which  the  United  States  shall  be  a  party;  to  con- 
troversies between  two  or  more  states,  between  a  state  and  citi- 
zens of  another  state,  between  citizens  of  different  states,  between 
citizens  of  the  same  state  claiming  lands  under  grants  of  different 
States,  and  between  a  state,  or  the  citizens  thereof,  and  foreign 
states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the  supreme 
court  shall  have  original  jurisdiction.  In  all  other  cases  before 
mentioned,  the  supreme  court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions,  and  under  such  regula- 
tions as  the  congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury;  and  such  trial  shall  be  held  in  the  state  where  the  said 
crimes  shall  have  been  committed ;  but  when  not  committed  within 
any  state,  the  trial  shall  be  at  such  place  or  places  as  the  congress 
may  by  law  have  directed. 

Sec.  3.  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act, 
or   on   confession   in   open   court. 

The  congress  shall  have  power  to  declare  the  punishment  of 
treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted. 


248  CONSTITUTION  OF  THE  UNITED  STATES. 

ARTICLE  IV. 

Section  i.  Full  faith  and  credit  shall  be  given  in  each  state 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  congress  may,  by  general  laws,  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

Sec.  2.  The  citizens  of  each  state  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  states. 

A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  state  having  juris- 
diction of  the  crime. 

No  person  held  to  service  or  labor  in  one  state,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or  labor, 
but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due. 

Sec.  3.  New  states  may  be  admitted  by  the  congress  into 
this  union ;  but  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state;  nor  any  state  be  formed  by  the 
junction  of  two  or  more  states,  or  parts  of  states,  without  the  con- 
sent of  the  legislatures  of  the  states  concerned,  as  well  as  of  the 
congress. 

The  congress  shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States;  and  nothing  in  this  con- 
stitution shall  be  so  constructed  as  to  prejudice  any  claims  of  the 
United  States  or  of  any  particular  state. 

Sec.  4.  The  United  States  shall  guaranty  to  every  state  in  this 
union,  a  republican  form  of  government,  and  shall  protect  each  of 
them  against  invasion;  and  on  application  of  the  legislature,  or 
of  the  executive  (when  the  legislature  cannot  be  convened)  against 
domestic  violence. 

ARTICLE  V. 

The  congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  constitution,  or,  on 
the  application  of  the  legislature  of  two-thirds  of  the  several  states, 
shall  call  a  convention  for  proposing  amendments,  which,  in  either 
case,  shall  be  valid  to  all  intents  and  purposes,  as  part  of  this  con- 


CONSTITUTION  OF  THE  UNITED  STATES.  249 

stitution,  when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  states,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed  by 
the  congress;  provided,  that  no  amendment,  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and  eight,  shall  in 
any  manner  aflfect  the  first  and  fourth  clauses  in  the  ninth  section 
of  the  first  article;  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate. 

ARTICLE  VI. 

All  debts  contracted,  and  engagements  entered  into,  before  the 
adoption  of  this  constitution,  shall  be  as  valid  against  the  United 
States,  under  this  constitution,  as  under  the  confederation. 

This  constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made  or  which 
shall  be  made  under  the  authority  of  the  United  States,  shall  be 
the  supreme  law  of  the  land;  and  the  judges  in  every  state  shall 
be  bound  thereby,  anything  in  the  constitution  or  laws  of  any 
state  to  the  contrary  notwithstanding. 

The  senators  and  representatives  before  mentioned,  and  the 
members  of  the  several  state  legislatuers,  and  all  executive  and 
judicial  officers,  both  of  the  United  States  and  of  the  several  states, 
shall  be  bound  by  oath  or  affirmation,  to  support  this  constitution; 
but  no  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  conventions  of  nine  states,  shall  be 
sufficient  for  the  establishment  of  this  constitution  between  the 
states  so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  states  present, 
the  seventeenth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  seven  hundred  and  eighty-seven,  and  of  the 
independence  of  the  United  States  of  America  the  twelfth.  In 
witness  whereof,  we  have  hereunto  subscribed  our  names. 
(Signed  by) 

George   Washington, 

President  and  Deputy  from  Virginia, 
and  by  Thirty-nine  Delegates. 


250  CONSTITUTION  OF  THE  UNITED  STATES. 

ARTICLES  IN  ADDITION  TO  AND  AMENDMENT  OF  THE 
CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a  re- 
dress of  grievances. 

ARTICLE  IL 

A  v(^ell  regulated  militia  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not 
be  infringed. 

ARTICLE  IIL 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner;  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated ;  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service,  in  time  of  war  or  public  danger; 
nor  shall  any  person  be  subject  for  the  same  offence,  to  be  twice 
put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled,  in  any 
criminal  case,  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law;  nor  shall 
private  property  be  taken  for  public  use  without  just  compensa- 
tion. 


CONSTITUTION  OF  THE  UNITED  STATES.  2$I 

ARTICLE  VL 

In  all  criminal  prosecution,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory  pro- 
cess for  obtaining  witnesses  in  his  favor ;  and  to  have  the  assistance 
of  counsel  for  his  defence. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved; 
and  no  fact,  tried  by  a  jury,  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States,  than  according  to  the  rules  of  the 
common   law. 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 

The  enumeration  in  the  constitution,  of  certain  rights,  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the  people. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved  to  the  states 
respectively,  or  to  the  people. 

ARTICLE  XL 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state. 


252  CONSTITUTION  OF  THE  UNITED  STATES. 

ARTICLE  XII. 

Section  i.  The  electors  shall  meet  in  their  respective  states 
and  vote  by  ballot  for  president  and  vice-president,  one  of  whom, 
at  least,  shall  not  be  an  inhabitant  of  the  same  state  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for  as 
president,  and  in  distinct  ballots  the  person  voted  for  as  vice- 
president;  and  they  shall  make  distinct  lists  of  all  persons  voted 
for  as  president,  and  of  all  persons  voted  for  as  vice-president,  and 
of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  government  of  the  United 
States,  directed  to  the  president  of  the  senate: — the  president  of 
the  senate  shall,  in  the  presence  of  the  senate  and  house  of  repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted : — the  person  having  the  greatest  number  of  votes  for 
president,  shall  be  the  president,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed;  and  if  no  person  have 
such  majority,  then  from  the  persons  having  the  highest  numbers, 
not  exceeding  three,  on  the  list  of  those  voted  for  as  president, 
the  house  of  representatives  shall  choose  immediately,  by  ballot, 
the  president.  But  in  choosing  the  president,  the  votes  shall  be 
taken  by  states,  the  representation  from  each  state  having  one 
vote;  a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.  And  if  the  house  of  repre- 
sentatives shall  not  choose  a  president,  whenever  the  right  of  choice 
shall  devolve  upon  them  before  the  fourth  day  of  March  next  fol- 
lowing, then  the  vice-president  shall  act  as  president,  as  in  the  case 
of  the  death  or  other  constitutional  disability  of  the  president.  The 
person  having  the  greatest  number  of  votes  as  vice-president,  shall 
be  the  vice-president,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed ;  and  if  no  person  have  a  majority 
then  from  the  two  highest  numbers  on  the  list,  the  senate  shall 
choose  the  vice-president;  a  quorum  for  the  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  president,  shall  be  eligible 
to  that  of  vice-president  of  the  United  States. 

ARTICLE  XIII. 

Section   i.     Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  been  duly 


CONSTITUTION  OF  THE  UNITED  STATES.  253 

convicted,  shall  exist  within  the  United  States,  or  any  place  subject 
to   their   jurisdiction. 

Sec.  2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE  XIV. 

Section  i.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  state  wherein  they  reside.  No  state  shall 
make  or  enforce  any  law  which  shall  abridge  the  privileges  and 
immunities  of  citzens  of  the  United  States ;  nor  shall  any  state 
deprive  any  person  of  life,  liberty,  or  property,  without  due  process 
of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws. 

Sec.  2.  Representatives  shall  be  apportioned  among  the  sev- 
eral states  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  state,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  president  and  vice-president  of  the  United  States, 
representatives  in  congress,  the  executive  and  judicial  officers  of  a 
state,  or  the  members  of  the  legislature  thereof,  is  denied  to  any 
of  the  male  inhabitants  of  such  state,  being  twenty-one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion  or  other  crime,  the  basis  of 
representation  therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  state. 

Sec.  3.  No  person  shall  be  a  senator  or  representative  in 
congress,  or  elector  of  president  and  vice-president,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any 
state,  who,  having  previously  taken  an  oath,  as  a  member  of  con- 
gress, or  as  an  officer  of  the  United  States,  or  as  a  member  of  any 
state  legislature,  or  as  an  executive  or  judicial  officer  of  any  state, 
to  support  the  constitution  of  the  United  States,  shall  have  engaged 
in  insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  congress  may,  by  a  vote  of 
two-thirds  of  each  house,  remove  such  disability. 

Sec.  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppressing  insurrection  or  re- 
bellion, shall  not  be  questioned.  But  neither  the  United  States 
nor  any  state  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United   States,  or 


254  CONSTITUTION  OF  THE 'UNITED  STATES. 

any  claim  for  loss  or  emancipation  of  any  slave ;  but  all  such  debts 
obligations,  and  claims  shall  be  held  illegal  and  void. 

Sec.  5.  The  congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Section  1.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
state  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Sec.  2.  The  congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 


The  first  ten  of  these  amendments  were  proposed  by  congress 
by  resolution  of  1789,  and  were  ratified  before  1791.  The  eleventh 
amendment  was  proposed  by  congress  by  resolution  of  the  year 
1794,  and  was  ratified  before  1796.  The  twelfth  article  was  pro- 
posed by  congress,  by  resolution  of  October,  1803,  and  was  ratified 
before  September,  1804.  The  thirteenth  article  was  proposed  by 
congress,  by  resolution,  of  the  year  1865,  and  was  ratified  before 
December  18,  1865.  The  fourteenth  article  was  proposed  by  con- 
gress, by  resolution,  of  the  year  1866,  and  was  ratified  before  the 
20th  day  of  July,  1868.  The  fifteenth  article  was  proposed  by  con- 
gress, by  resolution,  of  the  year  1869,  and  was  ratified  before  the 
30th   day  of  March,   1870. 


INDEX 


INDEX. 


Achean   League,   211-212. 

Action,    148,   149. 

Admiralty  Jurisdiction,   158-165. 

Admission   of   States,   62,   248. 

Aliens,  55,  57,  62,  64,   158 

Ambassadors,   129,   152,   158 

Amendments  to  U.  S.  Constitu- 
tion,  250 

American  Women,  109 

Amphictyonic    Council,    211-212. 

Ancient  History,  219 

Appellate  Jurisdiction,   148,   149 

Appointment,  25,    130,    134 

Apportionment  of  Representa- 
tives, 13,  21,  23,  253 

Apportionment  of  Tax,  28,  33, 
243,   253 

Appropriations,  244 

Arms,  250 

Army,  97,   no,  243 

Arrest,  148,  216,  217,  241 

Attainder,  244 

Athens,  212 

Authors,  34,  80,  243 

Bail,  251 
Ballot,  252 
Banks,  35,  86 
Bankruptcy,  65,  66,  242 
Bill,  242 

Bill  of  Rights,  216-217 
Bill  of  Credit,  244 
Books,   80 


Boundary   Questions,    167-168 

Bridge,  42 

Borrow  Money,  36,  242 

Canals,  42 

Carriers,    161 

Check    and    Balance,    27-28,     133- 

134 
Christianity,  215 
Church  and  State,  224,  249,  250 
Circuit     Court     of     the     United 

States,   147-149,   170 
Citizens,  54,  62,  65,  206,  253 
Civil  Officers,  in,  246-247 
Coining  Money,  68,  242 
Collective  Naturalization,  62 
Collisions,  160 

Colonization  of  America,  219-220 
Commerce.   47 
Common  Law,  56,  68,  82,  150,  163, 

217,  251 
Compensation     of     Judges,      142, 

247 
Compensation   of    President,    246 
Compensation   of   Representatives, 

241 
Compensation   of   Senators,   241 
Compensation  of  Property,  250 
Confederation,  212,  234 
Congress,   21,  .100,    119,    120,    122, 

239 
Constitution,    204,    205,    214,    239- 

255 
257 


258 


INDEX. 


Consuls,  129,  152-158,  247 
Qjntinental  Congress,  230 
Contracts,  (yj,   120,  163,  244 
Controversies,   162,   165-166,  221 
Copyright,  80,  243 
Corporation,   196 
Counsel,  251 
Counterfeiting,  ^2,  2^2 
Courts,    141-207 
Crimes,  248,  251 
Criminal   Proceedings,   176 
Currency,  68-70 

Debts,  38,  68,  69-70,  253 
Declaration  of  Independence,  232, 

235 
Declaration  of  War,  231,  232 
Delegation  of  Powers,  7,  8,  10 
Demands,   175 
Department   of   Government,    no, 

127,  141 
Despotism,  2)2> 
Direct  Tax,  35 
Discretionary  Power,  100 
District  of  Columbia,  177,  243 
District     Court     of     the     United 

States,   152-158,    162 
Diverse  Citizenship,   176 
Drummers,  52 
Due  Process  of  Law.  198 
Duties  and  Imports,  28-32 

Election,  23,  loi,  240,  241,  253 
Electors,    21,    239.    244-245,    252, 

253 
Eleventh  Amendment,   181 
Eligibility,  107,  109 
Embargo,  42 
England,   3,    16,   31,   56,    158,   217, 

228 
Europe,  215 
Evidence,  175 
Excise  Taxes,  28-32 
Exclusive  Privileges,  80,  84 


Executive    Department,    107,    no, 

131 
Exports,  41-44,   244 
Ex  Post  Facto  Law,  97,  244 
Expulsion,  57,  65 
Extradition,  171 

Faith  and  Credit,   175 
Fall  of  Rome,  214-215 
Federal  Courts,  66,  162 
Federal  Government,  128 
Felonies  on  High  Seas,  87 
Fifth  Amendment,  204,  250 
First  Amendment,  183,  250 
Fisheries,   164 
Flag,  2ig 

Foreign   Commerce,  41-44,   46-49 
Foreign  Judgment,  172 
Foreigners,  65,  148 
Fourteenth   Amendment,    148,   253 
Fourth  Amendment,   187,   250 
Freedom  of  Religion,  183-186 
Fugitive  from  Justice,   171,  248 

Germans,  217 
Grecian  Republics,   151 
Government,  7,  8,  10 
Governor,  6 
Grants,  8,  27 ,  171.  244 
Great  Britain,  4-16 
Great  Lakes,  93,  227 

Habeas  Corpus,  217,  243 

Health  Law,  53 

High  Seas,  51,  87-93 

Highways,  93 

House  of  Representatives,  21-28 

Immigration,  64,  243 
Immunities,  54,  55,  201,  229,  248 
Impeachment,  97,   in,   112 
Importers,  48,  243 
Imposts,   32,  244 
Injunction,  45 


INDEX. 


259 


Insolvent  Laws,  66-67 
Inspection  Laws,   53,   244 
Insurrection,  97-99 
International   Law,    98,    167,    171, 

182 
Interstate  Commerce,  41-47 
Intoxicating  Liquors,  61-62 
Invasion,  98,  99 
Inventions,  80,  82,  87 

Japan,  4,  5,  15,  16 

Jeopardy,  143,  250 

Judges,  9,  241,  248,  249 

Judgments,  100,  143,  161,  175,  241 

Judiciary,  143,  144-149,  207 

Jury,   157,  251 

Jurisdiction, ,  147,   161,   163,  253 

Law  of  the  Land,  249 

Law  of  Nations,  88,  167 

Legal  Tender,  69 

Legislative   Department,   239 

Legislative  Powers,  32 

Liberty,  24,  143,  189,  250,  253 

License,  41,  45,  47,  51 

Life,  250,  253 

Limitation,  21,  34,  85,  117-118 

Liquor,  51 

Local    Self    Government,    53,    86, 

150 
Lotteries,  79,  203 

Magna  Charta,  216 
Mails,  'jd,  79 
Majority,   ZZ,   252 
Maritime   Jurisdiction,    158 
Measures  and  Weights,  68,  72 
Messages   of   the    President,    128- 

129,  246 
Middle  Age,  217 
Militia,   243,   250 
Municipal  Law,  171 

Nation.  54,  92,   167 
National  Banks,  35,  38 


Natural  Born  Citizen,  55,  107,  245 

Naturalization,  253 

Navigable  Waters,  160,  230 

Navigation,  43,  44,  45 

Navy,  no,  243,  246 

New  State,'^248 

Newspapers,  79 

New  World,  219 

Non-Resident,  t^ 

Nobility,  228,  244 

Obligation  of    Contract,    67,    179, 

244 

Office,  108,  109,  241,  246 

Oppressive  Measure,  24 
Original     Jurisdiction,     153,     154, 

157,  176 

Omitakara,  4 

Papers,  250 

Pardons,  112 

Parliament,  14,  112 

Passengers,   52,    162 

Patents,  80 

Penal  Proceeding,  176 

People,  The,  3-17,  251 

Petition,  229,  230,  250 

Petition  of  Right,  216 

Piracy,  89 

Police  Power,  53,  ^d 

Political  Question,    167,    168,    171 

Post  Office  and  Post  Roads,  76 

President,  99,  107-137,  207 

Press,  76,  250 

Privilege,  32,  54,  201,  229,  248 

Property,  35,  85,  86,  124 

Public    Ministers,    129,    158,    247, 

252-253 
Punishments,  251,  252 

Qualifications,   21-28,    107 
Quartering  Soldiers,  250 

Race,  57,  254 
I    Railroads,  42 


26o 


INDEX. 


Rebellions,  97-99,  223 

Records,   248 

Reformation,  218 

Religious    Liberty,    183-186,    223- 

225,  250 
Removal   from    State    to    Federal 

Courts,  161,  163 
Representatives,  137,  249 
Reprieves,  112 
Republican  Form  of  Government, 

21,   127,  204,  248 
Revenue,  242 
Revolution,  69,  97-99 
Roman  Law,  212-215 

Seamen,  189 

Searches   and    Seizures,    187,   230, 

231,  250 
Secrecy,  241 
Servitude,  254 
Senator,  25,  131,   133,  240 
Separation    of    Powers,    133,    141- 

142,  181-182 
Seventh  Amendment,  251 
Sixth  Amendment,  251 
Slave  Trade,  221,  252-253 
Sovereign    Powers,    172,   200 
Sovereign  State,  26,  71,  170,  177, 

181,  251 
Speech,  250 
Speedy  Trial,  251 
Stamp  Act,  52,  229 


State  Court,   149-152,   171,   I75 

State  Law,  47,  48,  124,  165,  171 

State  Legislature,  25,  83 

Suffrage,  22,  54,   108,  205 

Sunday,   129,  242 

Supreme  Court,  142,  144,  149,  247 

Supreme  Laws,  249 

Surrender  of  Offenders,  171,  248 

Taira  Clan,  220 

Taxation,  28-33 

Telegraph,  42 

Teutonic   Influence,   214-216,   222 

Thirteenth  Amendment,  190,  252 

Thirteen  American   Colonies,  227 

Treason,  97,  247 

Treaties,  63,  118-119 

Tyranny,  24,  28,  loi 

Uniform  Rule,  33,  65,  242 
Uniform  Laws,  54,  242 

Vacancies,  131,  240 
Veto   Power,   129,  242 
Vice-President,   no,  240,  245,  252 

War,  93,  no,  244 

Woman  Suffrage,  203 

Writs  of  Certiorari,  170 

Writs  of  Habeas  Corpus,  217,  243 

Writs  of  Mandamus,  171 

Witness,  251 


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